
    GILBERT v. THOW.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8208.
    Decided Feb. 13, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    791. MOTIONS AND ORDERS — 1195. Trial — 941. Practice and Procedure.
    Where, as trial proceeds, information, sought by motion to make definite and .certain, is furnished, and no effort is made to continue cause on account of surprise, overruling motion not prejudicial error.
    384. DEMURRER.
    Where thing sought' by demurrer is what motion to make definite and certain failed to accomplish, demurrer is in nature of such motion.
    Error to Common Pleas.
    Judgment affirmed.
    G. C. Hafley, Cleveland, for Gilbert.
    Payer, Minshall, Karch & Kerr, Cleveland, for Thow.
    STATEMENT OF FACTS.
    This cause is here on error from the Court of Common Pleas of Cuyahoga County, and the-plaintiff in error claims there is error in the proceedings before the court below, first, that upon a motion to make definite and certain, the court should have granted the motion instead of overruling the same,-and that, thereafter, a demurrer having been filed on the ground that the petition did not state a cause of action, the same shsuld have been sustained instead of overruled.
    It appears that the defendant in error Thow began a suit, against the plaintiff in error in the court below, to recover for services as a conductor and leader ’ of an orchestra, for furnishing music at the place of business of the plaintiff in error. It is insisted that it was her husband, now deceased, who made the-original contract with the conductor and his orchestra, and that the suit should have been against him instead of against his widow, and it is claimed by the plaintiff below, Thow, that the contract, -after the husband became unable to. conduct his- business, was made with the wife instead of the husband.
    The trial below proceeded, after the overruling of the motion and demurrer as aforesaid, and a judgment was found in favor of the defendant in error Thow.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

SULLIVAN, PJ. _

_ We have examined the assignment of error as to whether the court erred in overruling the motion to make definite and certain, and we have come to the conclusion that the statement of claim was sufficient, according to the rules •prescribed for a short form. cause of action. We feel that there was no prejudice at least for the reason that, as the trial proceeded, the information sought by the motion was furnished, and no effort was made to continue the cause on account of surprise and, therefore, it seems to us that there was no prejudicial error as to the demurrer.

It is our judgment that the petition stated a cause of action, and the thing sought by the demurrer was what the motion to 'make deflate and certain failed to accomplish and, therefore, its character was not a demurrer but in the nature of a -motion to make more definite and certain. We hold that the court m this respect committed no error.

Therefore, we are of the opinion that on this question there is no prejudicial error.

We have examined the complaint as to the charge of the court, and we think there is no prejudicial error in the charge in its entirety and the entire record in the case.

Holding these views, the judgment of the-lower court is'hereby affirmed.

(Vickery and Levine, JJ., concur.)  