
    T. H. Hamilton et al. v. George W. Miller et al.
    In actions for the recovery of money only, the amount for which the plaintiff demands judgment is required tp be indorsed on the summons, whether the action sounds in contract or tort.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Ross county.
    The plaintiffs in error, Hamilton et al., sued Miller et al., 
      In the Court of Common Pleas of Ross county, to. recover ■damages for the conversion of certain timber, the property of the plaintifl's. The amount of damages claimed in the petition was $500.
    Summons was issued and served on the defendants, but it contained no indorsement of the money demanded.
    The defendants did not appear to the action. On default, damages were assessed against them at $340, for which judgment was rendered.
    On error, the judgment was reversed by the district ■court, and it is now sought to reverse the judgment of reversal.
    One of the errors assigned in the district court was, that the action was for the recovery of money only, and that there was no indorsement .on the summons of the amount •demanded.
    The view taken by the court of this assignment renders ,a further statement of the case unnecessary.
    
      Throckmorton, and Harrison, Olds $ Marsh, for the •motion.
    
      TI. W. Safford, contra.
   "White, J.

We think this case is governed by the principle decided in Finckh v. Evers, 25 Ohio St. 82.

.In that case the proposition was laid down, that, in an .action for the recovery of money only, it is error to take judgment by default against the defendant, the summons .against whom has no indorsement upon it of the amount ■claimed, and whose appearance- to the action is not otherwise effected.

In that case the action was founded on an indemnifying bond given to a constable*. In the present case the 'action ¡sounds in tort, and for this reason it is claimed that the rule laid down in Finckh v. Evers does not apply.

The claim of the plaintiff's is that the indorsement on the summons is required only in cases where the plaintiff, on default for answer, is entitled as of right to judgment for the full amount demanded.

It seems to us that this claim is founded on too narrow" a construction of the section of the code requiring the indorsement to be made; and is inconsistent with the implication arising from the last clause of the section, which provides that, if the defendant fail to appear, judgment shall not be rendered for a larger amount than is indorsed on the summons.

The implication is, that judgment may properly be rendered for a less sum than is demanded by the writ.

The terms “ action for the recovery of money only,” as used in the section of the code in question, are, it seems to us, to be understood in the same sense in which they are used in sections 268 and 276, in relation to trial by jury, .and section 557, in relation to costs; and include all actions for the recovery of money only, without regard to whether they sound in contract or tort.

The provision of the' New York code, to which the decisions cited from that state relate, is substantially different from the provision in our code on the subject. The language of the New York code is, “ an action founded on contract, for the payment of money only.”

Leave refused.  