Negley v. Jeffers (28 Ohio St. 90, 1875)

Johnson, J.

Three causes are assigued why this judgment should be i’e versed :

1. That the coux’t exred in sustaixxing the demurrer to the-supplemental answer.

2. That the court erred in allowing a new and amended undei'taking for a second tx’ial.

3. That there was error in admitting proof of the verbal conti-act of June 19, 1865, to relieve plaintiffs from the-conditions precedent iix the written contract of Eebruax-y 2,1865.

I. Did .the coux’t err in sustaining a demuri-er to the supplemental answer? That answer stated: “That since the-bringing of this action, that Alan son R. Simmons, one of the plaintiffs in this case, has applied for the benefit of the bankrupt act, . . . and that his assignee should be-made a party to this suit.”

The answer does not aver that he had been adjudged a bankrupt, or that an assignee had ever been appointed. Without-considering the effect of sec. 39 of the code, which provides-that “in case of any transfer of ixxterest, the action may be continued in the name of the original party,” in case Simmons had been adjudged a bankrupt, it is enough to-say, the plea is insufficient to create a legal presumption-that such transfer had taken place.

The mex-e filing a petition asking to be adjudged a banknipt, does not per se operate as such transfer.

II. Did the court err in ovex-rulixxg defendant’s motion to dismiss the case from the second trial docket, and in granting plaintiffs leave to amend by the filing of a new undertaking ?

The only defect in the oxlginal undertaking was that it was not subscribed by the plaintiffs; otherwise it was unobjectionable.

The statute (2 S. & C. 1155) provides that the party demanding a second trial “ shall enter into an undertaking, . . . with surety; ” and it is claimed, as this is a jurisdictional matter, the court had no power to amend, as the giving of such an undertaking was a condition precedent to a vacation of judgment, and, while that judgment remains, the court had no jurisdiction to entertain the motion.

It is further claimed that the only power to amend in such eases is found in the act of May 13, 1861 (S. & S. 586), which only provides for amendments where the party has entered into an undertaking, and only then for the causes therein specified.

"We can not assent to either of these views.

It has already been decided, in case of an appeal bond, that it is a “ proceeding ” under the 137th section of the code of civil procedure, which may be amended so far as any mistake exists. Irwin v. Bank of Bellefontaine, 6 Ohio St. 81.

Counsel claim that if that case is good law, then the act of 1861, already cited, is subsequent legislation, restrictive of the broad doctrine of that ease, and operates as a limitation on the power to amend; but if it is not good law, then the act of 1861 is an enabling act, granting to the court power which it did not possess.

The mistake of this argument arises from supposing that the act of 1861 covers the same ground as the 137th section of the code, and was intended t