Waller v. Industrial Commission

OPINION

BY THE COURT:

The appeals are on questions of law from judgments entered against appellant upon his election to plead no further after the Court had sustained the demurrers of the defendant, Robert E.. Leach, to the amended petitions and motions of defendants, William T. Blake, James A. White and George T. Coffinberry to dismiss the amended petitions of plaintiffs.

The entries in Waller v Leach, 44 Abs 127, recite that the amended petitions attempt to set up a new cause of action against the defendant, Leach, in his individual capacity; that the action is barred by the statute of limitations. The final entries as to defendants Blake, White and Coffinberry recite that the plaintiff obtained no leave to make respective defendants party defendants to the actions and that the amended petitions state a new cause of action against the' defendants in their individual capacities.

The transcript of docket and journal entries begins with •the amended- petitions of the plaintiff filed September 1, 1944. The original petition is not a part of the transcript. We, therefore, must accept the statement in each entry that the amended petitions attempt to set up a new cause of action against the defendants in their individual capacities. If so, the. action of the Court, whether on demurrer or on motion to strike, was correct, because, obviously, the action attempted to be stated in the amended petition, conspiracy to commit libel, was separate and independent from that attempted to be stated in the original petition, libel. The ultimate effect of the action of the Court, whether upon demurrer or on motion to strike from the files, is the same, inasmuch as- plaintiff elected to plead no further. See Grant v Ludlow, 8 Oh St, 1; §11363 GC; Kissler v Motion Picture Machine Operators’ Union Local No. 165, et al., 26 Oh Ap 284.

Judgments affirmed.

HORNBECK, P. J„ GEIGER and. MILLER,'JJ., concur.