State ex rel. Rice v. Industrial Commission , 87 Ohio Law. Abs. 605 ( 1957 )

Bryant, J.

The question before the court has to do with a motion to amend and a motion to strike filed by respondent. The relator filed his petition for peremptory writ of mandamus against the respondent, Industrial Commission of Ohio. The order sought would require respondent to reconsider an order heretofore made and take certain other steps having to do with the legal fee claimed to be due and owing to relator.

Respondent has filed a motion, the first branch of which seeks to require relator to amend his petition. Respondent asks that in the caption there be added the words, “State of Ohio, ex rel., ’ ’ above and before the name of Edw. Everett Rice as relator. We have examined the file and find therein two letters by relator’s attorney having a bearing on this question. One of them, dated February 19, 1957, was attached to the petition as originally mailed to the Clerk of the Court of Appeals. At that time apparently the words, “State of Ohio, ex rel.,” did not appear before the relator’s name as part of the caption. The second letter is dated February 20, 1957, from Mr. Rice to the Clerk and states that by oversight these words were omitted from the caption and the request was made that the words, ‘ ‘ State of Ohio, ex rel., ’ ’ be inserted above the name of relator. Authority was given to the Clerk to make the change. It appears that the second letter was filed February 21, 1957, and it further appears that the words desired have been added to the caption above the name of the relator as directed in relator’s letter and as prayed for in the motion of respondent. In as much as the relief prayed for by respondent already has been granted, this branch of the motion must be and is hereby overruled.

The other branch of the motion is in ten parts and is based on the provisions of Section 2309.33, Revised Code, which so far as here pertinent, is as follows:

“If redundant, irrelevant, or scurrilous matter is inserted in a pleading, it may be stricken out on motion of the party prejudiced thereby. * * *”

It is, of course, well settled that pleadings should contain operative or ultimate facts relied upon by the pleader to state his cause of action or defense and that pleadings should not be burdened down with mere statements of evidence. (See 31 Ohio Jurisprudence, page 544, Pleading, Section 12.)

Coming now to consider the ten branches of the motion, it is the decision of the court that Parts I, II, VII and X should be overruled, that Parts III, IV, V, VIII and IX should be sustained in their entirety and Part VI should be sustained as to sentences (1) and (2) and as to the final sentence, but overruled as to the remainder. Exceptions noted and leave to plead granted.

Petree, P. J., and Miller, J., concur.