
    ORCUTT v HAUSMER et
    Ohio Appeals, 6th Dist, Lucas Co
    No 2946.
    Decided May 28, 1934-
    Clarence P. Ducey, Toledo, for plaintiff in error.
    Frank M. Sala, Toledo, for defendants in error.
   OPINION

By LLOYD, J.

Hausmer filed a motion in this court to dismiss the petition in error for the reason that the action of the Court of Common Pleas in “striking out certain matters in the answer of the defendant below is not a final order” and “for the' further reason s * •' that plaintiff in error 'never asked the court for leave to amend her petition.” It is apparent that this m°tt°n should bo overruled.

The judgment for'costs rendered on the sustaining' of the demurrer to the cross-petition of Orcutt was a final order and the cross-petition certainly states a good' cause of action. It asks'for the reformation of a deed which, if the facts stated therein ar.e true, slíould be decreed. That no trial has been had of the issues made by the petition of Hausmer and the answer thereto of Orr cutt, cannot avail to prevent Orcutt from prosecuting error to this • court from the judgment rendered by the Court of Common Pleas after ■ sustaining . the demurrer of Hausmer to her petition. '

Wyse V N. Y. C. R. R. Co., 11 Court of Appeals Opinions, Sixth District, unreported, p. 248;

Hawkins v Wheeling & Lake Erie Ry. Co., 18 Court of Appeals Opinions, Sixth District, unreported, p. 103.

If the reformation of the deed sought by Orcutt’s crosspetition is decreed, then' a complete "defense is-established to the alleged cause of action of' Hausmer.

We may suggest that the written contract in question probably would be admissible in evidence under the general denial contained in the answer of Orcutt, but under the affirmative allegations Which, on motion of Hausmer, were stricken- from the answer-, it Certainly would be admissible and the motion to strike these allegations therefrom! should have been overruled. '

Metcalf v Lay, 39 Oh Ap, unreported, 448, (16 Abs 487).

Conklin v Hancock, 67 Oh St, 455.

Judgment of the Court of Common Pleas is reversed and the cause remanded to that court with directions ■ to overrule the demurrer of Hausmer to the cross-petition of Orcutt and for further proceedings according to law.

Reversed and remanded.

RICHARDS, J, concurs.

WILLIAMS, J, not participating.  