
    Thompson v. Thompson.
    (Decided July 13, 1931.)
    
      Mr. Charles E. Elston, for plaintiff in error.
    
      Mr. Joseph E. Woeste, for defendant in error.
   Hamilton, J.

Rose Thompson filed suit against her husband, Harry Thompson, for alimony and equitable relief. Summons was duly served. Thompson filed an answer and cross-petition in which he asked for a divorce. Summons was duly served.

On April 8, 1930, the case came on for trial, and much evidence was adduced. Near the close of the hearing it appears that another divorce case was discussed; all the parties in each case mingling improperly. At this state of the proceedings the following appears, as shown by the bill of exceptions:

“The Court: Gallagher has been trying for years to get a divorce, but he ought to be relieved now and these cases ought to be cleared up all around.
“A. She left under the name of Mrs. Virginia Clark, when she had that child. That is the way Busse & Borgman buried the child.
“The Court: I don’t know that there is anything we can do but to settle this ease up equitable and get them all divorced. What do you think about it, Judge Woeste?
“Judge Woeste: Oh, I don’t mind, Judge. It is a matter of property. We would like to file a petition and have the divorce go to Mrs. Thompson if it is going to be allowed at all. I think that is only reasonable and that Mr. Frankenstein will agree to that.
“Mr. Frankenstein: I don’t see why we should.
“The Court: We are here to adjust matters the best we possibly can. Are you through with him?
“Judge Woeste: I haven’t had a chance to cross-examine.
“The Court: Cross-examine, then.”

The record further discloses that on May 14, 1930, thirty-six days after the trial, leave was given to file an amended petition, and on the same day an amended petition was filed containing the same allegation with some additional grounds and asking for a divorce in addition to alimony. Summons was duly issued. The defendant was in default for answer or other pleading.

On January 5, 1931, without further hearing the court entered a decree in favor of Rose Thompson, granting her the divorce and giving her a large share in the husband’s property as alimony, to which the defendant excepted.

On January 6, 1931, the defendant husband filed a motion for a new trial, which, on February 13, 1931, the trial court overruled.

The main grounds of error stressed are the overruling of the motion for a new trial, and error in permitting the filing of the amended petition, and the proceeding thereunder.

The trial court committed error in permitting the amended petition to be filed, as it changed the action from one for alimony to an action for divorce and alimony. See case of Hiler v. Hiler, 14 Ohio App., 174.

It is argued by defendant in error in the brief that the Hiler case is not decisive, for the reason that in the Hiler case the amendment was after decree, while in this case the amendment was before decree. This is immaterial. The cause of action was changed, and this cannot be done by amendment. Section 11363, G-eneral Code.

It is next suggested that the case could be considered upon the amended petition as an original petition, since personal service was had on the defendant and all the original allegations were incorporated therein; that the mere designation “Amended Petition” should not prevent the consideration of the pleading as an original petition.

We are of opinion that this might be done, and, had the case been tried on the amended petition as an original petition, no prejudice would have resulted. But according to the record, there has never been a trial upon the amended petition. The trial was had on the original petition. Thirty-six days later, no decree having been rendered, at the suggestion of the court the amended petition was filed. Some months later, without further hearing, a decree was placed of record. We have, therefore, a decree entered in one lawsuit based presumably upon the evidence adduced in another lawsuit.

For error in overruling the motion for a new trial, and in granting leave to file an amended petition, and proceeding thereunder, the judgment of the court of common pleas is reversed, and the cause is remanded for a new trial and. further proceedings.

Judgment reversed and cause remanded.

Ross, P. J., and Ctjshing, J., concur.  