
    Brewer, Ancillary Admrx., Appellee, v. Novakovich, Appellant, et al.
    (No. 283
    Decided November 18, 1964.)
    
      
      Messrs. Young é Jones, for appellee.
    
      Mr. G. B. Beirne, for appellant.
   Hildebrant, J.

In a suit in Probate Court to pay debts by an ancillary administratrix of the Ohio estate of a Nevada decedent, defendant-appellant filed an answer and cross-petition based upon an alleged judgment of a Nevada court allowing attorney fees for services as attorney for the estate in Nevada, the state of principal administration.

The trial court sustained a demurrer to such cross-petition and, in its judgment entry, found that the defect in the cross-petition could not be remedied and denied leave to file an amended cross-petition, and ordered it finally dismissed.

The propriety of this action is stated in oral argument to be the sole basis of this appeal on questions of law.

Section 2309.60 of the Revised Code provides:

“If a demurrer is sustained, the adverse party may amend if the defect thus can be remedied, with or without costs as the court directs. * * *”

Section 2309.55 of the Revised Code provides:

“At any time before the answer is filed, a plaintiff may amend his petition without leave or prejudice to the proceeding. Notice of such amendment shall be served upon the defendant or his attorney. The defendant shall have the same time to answer or demur thereto as to the original petition. ’ ’

While the court has a discretion to dismiss under Section 2309.60 of the Revised Code, pleading should be liberally construed and in the first instance, there having been no abuse of the statutory privilege to amend and the impossibility of amendment not being sufficiently clear to this court, substantial justice would seem to require the pleader be given one opportunity at least to amend. Cross-petitioner being in a position tantamount to that of a plaintiff, Section 2309.55, Revised Code, applicable to plaintiffs would strengthen that conclusion.

The judgment is reversed and the cause remanded with instructions to permit appellant to file an amended cross-petition.

Judgment reversed.

Hover, P. J., and Long, J., concur.  