Gantz v. Gease

Citations

• 82 Ohio St. (N.S.) 34

Syllabus

<p>Suit in common pleas upon guardian’s bond — To recover probate court judgment — Defendant surety interposes answer and cross-petition — Averring judgment in excess of amount due• — Court not deprived of power to grant relief — Issue triable tp court, not jury — Error to dismiss defendant’s appeal, when.</p> <p>1. Where, in a suit brought in the court of common pleas upon a guardian’s bond to recover the amount of a judgment of the probate court rendered against the guardian upon the seltle'ment of his accounts, the defendant surety interposes an answer and cross-petition averring that the amount of the judgment is greatly in excess of the amount actually due from the guardian to his ward, and that the judgment was obtained by concealment and fraud by the guardian, the mere fact that the pleading fails to deny the amount so adjudged due in its entirety, does not deprive the court of power to grant relief if the facts so charged by the pleading are found upon trial to be true.-</p> <p>2. The issue thus tendered is triable of right to the court and not to a jury.</p> <p>3. From a judgment rendered upon the trial of such issue either party has a right to appeal to the circuit court.</p> <p>4. It is error .in such case for the circuit court, on motion of plaintiff, to dismiss the defendant’s appeal.</p>