
    No. 92
    ANDERSON v. GRABER
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1495.
    Decided
    317. COUNTERCLAIM—Counterclaim arising out of same action on contract will lie though in tort.
    923. PLEADING—Demurrer sustained for wrong reason is not reversible.
    327. COURTS—Pleading showing want of jurisdiction on face, is demurrable.
    Published only in Ohio Law Abstract
   RICHARDS, J.

Epitomized Opinion

Graber brought an action before a J. P. to recover $50.00 for labor performed at $1.25 per hour in laying brick in the construction of a dwelling house for one Anderson. Anderson filed a pleading denying the claim and setting up a counterclaim in the sum of $1000 for damages claimed to result from the unskillful and negligent manner in which the labor was performed. On this counterclaim he demanded a judgment for $299.00. In the justice’s court a $150 judgment was rendered for Anderson. Plaintiff appealed to the common pleas. Plaintiff filed a petition setting up his claim for work and labor. Defendant cross petitioned asking judgment for $1075. The plaintiff filed a general demurrer, which was sustained, whereupon the defendant prosecuted error. In affirming the judgment, the court of appeals held:

1. If a counterclaim grows out of the same contract sued upon, a counterclaim will lie, even though it is in tort.

2. If the trial court properly sustains a demurrer, although for a wrong reason, a reviewing court will not set aside the decision of the lower court.

3. In a case appealed from a justice of the péace when a cross petition asks for an amount in excess of the amount of which the J. P. has jurisdiction, the defect which appears on the face of the pleading can be raised by demurrer upon the ground that the court is without jurisdiction.

Attorneys—L. E. Gorman, for Anderson; L. H. Wilkinson, for Graber; both of Toledo.  