Fosdick v. City of Cincinnati , 97 Ohio App. 120 ( 1953 )

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton County.

The trial court overruled a demurrer of the defendant to the amended petition. The defendant city of Cincinnati refused to plead further, and judgment was entered in favor of the plaintiff.

The amended petition is short, and is as follows:

"Plaintiff states that defendant George Guckenberger, auditor of Hamilton County sold him at public auction sale lot 21 Harvey Halls Subdivision for the sum of $30 which plaintiff has paid plus cost of deed and transfer fees. First tax bill was nearly $50 which included a sidewalk assessment. Plaintiff claims that said assessment should be stricken from his tax bill and that defendants should be enjoined from collecting it because it was a lien before property was sold and it exceeds the statutory limitation allowed for assessments."

The defendant filed no motion to make this amended petition definite and certain.

Plaintiff relies upon the provisions of Section 5723.12, Revised Code (Section 5762, General Code). The pertinent part of this section is:

"When a tract of land has been duly forfeited to the state and sold under such sections, the conveyance of such real estate by the auditor shall extinguish all previous title and invest the purchaser with a new and perfect title, free from all liens and encumbrances, except taxes and installments of special assessments and reassessments not due at the time of such sale, and except such easements and covenants running with the land as were created prior to the time the taxes or assessments, for the nonpayment of which the land was forfeited, became due and payable."

The words, "a sidewalk assessment," would, if given a construction favorable to the plaintiff, apply only to an assessment due.

If the defendant desired to know whether installments of an assessment not due were included in the terms used in the amended petition, a proper motion would have resulted in securing an allegation covering this matter.

Section 2309.40, Revised Code (Section 11345, General Code), provides:

"The allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties."

In Parletto v. Industrial Commission, 140 Ohio St. 12,42 N.E.2d 153, in the third and fourth paragraphs of the syllabus, it is stated:

"Section 11345, General Code, requires that the allegations of a pleading shall be liberally construed with a view to substantial justice between the parties.

"For the purpose of testing the legal sufficiency of a pleading, a demurrer admits not only the proper and well-pleaded factual allegations thereof, but also the fair, reasonable and favorable intendments and inferences arising therefrom * * *" Guardian Life Ins. Co. of America v. Veser,128 Ohio St. 200, 190 N.E. 405, is cited in support of the same rule. See, also, Rice v. Campbell, 71 Ohio App. 477, 483,50 N.E.2d 430; Union Properties, Inc., v. McHenry, 72 Ohio App. 102,104, 44 N.E.2d 744; Hotel Burnet Co. v. Union CentralLife Ins. Co., 72 Ohio App. 453, 457, 52 N.E.2d 754.

The demurrer could be sustained only if the terms used in the amended petition applied to installments of assessments not due, as well as those due.

To have these terms so include in their scope installments of assessments not due would be adopting a construction in violation of the statute and authorities noted.

Had the plaintiff been relying upon the exception applicable to installments not due, it would then have been necessary for him to state facts bringing him within the purview of such exception. Such is not the case. The defendant relies upon the exception to the general terms found in the amended petition.

If the defendant wished to have these terms of the amended petition so made to apply to the exception, then, either by motion or answer, such issue should have been presented.

The judgment is affirmed.

Judgment affirmed.

ROSS and HILDEBRANT, JJ., concur.