Klink v. Toledo Rys. & Light Co.

Citations

• 19 Ohio C.C. Dec. 564

Syllabus

<p>ERROR — PLEADING.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Poweb of Court to Dismiss an Action.</p> <p>When an amended petition, after having several passages struck out by the court, as redundant or improper pleading, still states a cause of action against the defendant, the court has no power to' dismiss the action without prejudice, in the absence of any pleading traversing the aver-ments left in the petition.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Dismissal and Nonsuit,” §§ 31-52; 7 Cyc. Dig., “Trial,” §§ 509-521. — Ed.]</p> <p>2. ERBOK TO &TRIKB MATERIAL AND PROPER AVERMENTS FROM PLEADING.</p> <p>It is prejudicial error for a court in an action for negligence of a street car company in permitting the proximity of two of its tracks in the city upon which the cars were permitted to pass so closely as to endanger the lives of passengers standing upon the running board, to strike from a pleading language that is material and a proper averment of the cause of action.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Pleading,” §§ 1431-1442. — Ed.]</p> <p>3. Power of Court to Strike Redundant Matter frosí Pleading.</p> <p>It is not prejudicial error for a court to strike from a petition matter that sufficiently appears in another part of the petition.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Error,” §§ 1592-1599; 6 Cyc. Dig., “Pleading,” §§ 1441, 1442. — Ed.]</p> <p>[Syllabus approved by the court.]</p>