Schaffer v. Schaffer , 114 Ohio St. 309 ( 1926 )

By the Court.

This action was begun in the court of common pleas of Montgomery county, Ohio, by Ethel Schaffer, defendant in error here, against the plaintiff in error, Harry D. Schaffer, and was in its inception an action for alimony only, and as a ground therefor charged the plaintiff in error with gross neglect of duty. Thereafter the plaintiff in error filed an answer and cross-petition in which he charged the defendant in error with gross neglect of duty and extreme cruelty, and prayed for divorce, and that defendant in error be divested of her dower interest in his real estate. Thereupon the defendant in error filed an amended petition and answer to the cross-petition of the plaintiff in error, in which she charged plaintiff in error with gross neglect of duty, as alleged in her original petition, and extreme cruelty, and prayed for a divorce and for alimony. Trial was had, and the court found as follows:

" The court finds from the evidence that the allegations set forth in the defendant’s cross-petition and plaintiff’s amended petition are not sustained, and both said amended petition and cross-petition are dismissed.”

The court then in the same entry proceeded to divide the property of plaintiff in error, Harry D. Schaffer, with the defendant in error, Ethel Schaffer. Error was prosecuted by the plaintiff in error to the Court of Appeals, where the judgment of the court of common pleas was affirmed. Error is prosecuted here.

The trial court having found that neither the allegations of the amended petition nor of the cross-petition had been sustained, and having for that reason dismissed both the amended petition and the cross-petition, had jurisdiction left to enter judgment for costs, and none other.

The judgment of the Court of Appeals and that of the common pleas court are reversed.

’ Judgments reversed.

Jones, Matthias, Allen, Kinkade and Robinson, JJ., concur.