
    Phillips v. Stein.
    
      Pleadings — Amending to conform with testimony — Third amended petition may be amended by interlineation, when —Section 11363, General Code.
    
    Permitting plaintiff to amend her third amended petition by interlineation in order to conform with the testimony held not error, in view of Section 11363, General Code, providing that when amendment will not change cause of action the court may amend pleading by conforming the pleading to the facts proved.
    (Decided May 23, 1927.)
    Error: Court of Appeals for Cuyahoga county.
    
      Mr. H. H. Henry, for plaintiff in error.
    
      Messrs. Klem & Klein, for defendant in error.
   Houck, J.

This cause comes into this court on a proceeding in error from the common pleas court of Cuyahoga county.

The parties stand here in the reverse order from that occupied in the court below. This action was previously tried in the lower court upon a second amended petition, and the record discloses that a judgment was awarded Morris Stein, plaintiff below, in the sum of $1,300. Prom this judgment error was prosecuted to the Court of Appeals, which judgment was reversed and remanded for a new trial. Thereupon the third amended petition was filed, and the cause was heard to the trial judge without the intervention of a jury. The trial judge found in favor; of the plaintiff in the sum of $866.60, with interest thereon. Error is prosecuted to this court seeking a reversal of the judgment below upon several grounds set forth in the petition in error.

In oral argument but one ground of claimed error was urged, to wit, that the court below committed error prejudicial to the rights of Phillips, in permitting the plaintiff to amend her. third amended petition by interlineation, in order to conform with the testimony.

Upon the determination of this claimed error rests the question as to whether or not the judgment below should be affirmed or reversed. The authority granted courts to permit amendments of pleadings is provided for in Section 11363, General Code of Ohio, which reads:

“Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may; amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not substantially change the claim or defense, by conforming the pleading or proceeding to the facts proved. When an action' or proceeding fails to conform to the provisions of this title, the court may permit either to be made conformable thereto, by amendment. ’ ’
“Our statute of amendments is very liberal. In furtherance of justice the court may amend any pleading, process or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect.” Boehmke v. Northern Ohio Traction Co., 88 Ohio St., 163, 102 N. E., 701.
“To allow amendments in the interests of justice, is broad, and in the absence of evidence to the contrary, a reviewing court will assume that the court was justified by the evidence in permitting the amendment.” Wicker v. Messinger, 22 C. C., 712, 12 C. D., 425.

We think that a lengthy discussion as to the rights of a trial court to amend a pleading is unnecessary. Therefore, in view of the provisions of Section 11363, General Code, and the authorities herein cited, we are of the unanimous opinion that the court below committed no error prejudicial to the rights of the plaintiff in error in permitting the amendment by interlineation to the third amended petition of the plaintiff below. It follows that the judgment of the common pleas court should be affirmed.

Judgment affirmed.

Shields, P. J., and Lemert, J., concur.

Judges of the Fifth Appellate District, sitting in place of Judges Sullivan, Vickery and Levine of the Eighth Appellate District.  