
    No. 30
    OHIO ELECTRIC RAILWAY CO. v. U. S. EXPRESS CO.
    Ohio Supreme Court,
    No. 17030
    decided July 5, 1922.
    For full opinion see 105 OS., 000
    PLEADINGS — (1) Upon amendment changing nature of action, service or waiver of summons necessary. (2) Answer adopting averments of former answer, does not adopt prayer. (3) Challenge of jurisdiction not waived by answer over, when. (4) Strictly construed, when.
    Error to the Hamilton Court of Appeals.
    Attorneys — Paul C. Martin, Joseph T. Grawdon and Maxwell & Ramsey for Railway Co.; Platt & Field and Harmon, Pilelon, Goldsmith & Hoadley, for Express Co.
   JOHNSON, J.:

Epitomized Opinion.

On May 1, 1909, the parties hereto entered into a ten-year contract for' handling the express business on the ear line of the above plaintiff. After five years of operation, notice was given by the express company that it would surrender the contract on June 14, 1914.

On June 25, 1914, the said plaintiff filed a petition against above defendant, in the Hamilton common pleas, in which judgment was asked for $10,000, claimed to be duo. On June 30, the express company discontinued the service, and withdrew from the state.

In the progress of the action, the express company answered, setting up several defenses to the contract, seeking to reduce the liability and denying that it was then in force. On February 4, 1915, the said plaintiff filed what it termed an “Amendment to Petition,” by which it sought to enlarge its original demands, by adding a claim for $300,000, damages for breach of the contract.

A motion by the express company, appearing for that purpose only, to strike this amendment from the files was allowed, and the said plaintiff then tendered to the court another amendment, much like the first. The court allowed an application to file the same. Defendant answered, setting up that it appeared only to contest jurisdiction upon the amendment, that it adopted the averments in its former pleading, and that it reserved all its former objections and exceptions, and omitted a prayer.

At the hearing judgment was entered for the railway, for $297,864. Motion for new trial was made and overruled, exceptions taken, and petition in error filed in the court of appeals. The appeal court found error In permitting the filing of the amendment, and for rendering the judgment for more than the $10,000 claimed in the petition. The Supreme Court found:

1. That the “Amendment to Petition” brought in a new and different cause of action, upon which no summons had been served, contrary to statute, and the rendering of judgment thereon without waiver or entry of appearance was reversible error.

2. The adoption of the averments of a pleading Is not an adoption of the prayer thereof. Consequently there being no prayer for relief in this answer, it did not give the court jurisdiction over the express company on the new cause of action.

3. The second answer of the express company did not bring it into court as to the new cause of action. A defendant appearing only for the purpose of objecting- to jurisdiction, upon the overruling of such objection is not bound to rely at his peril, solely upon it, hut may make full defense without waiving such objection.

4. Where jurisdiction of the person is dependent upon the language of a pleading, it will be construed strictly, and its scope will not be extended beyond its clear expression.  