
    McMullen, Exrx., et al. v. Bright et al.
    [Cite as McMullen v. Bright (1970), 27 Ohio Misc. 1.]
    (No. 21559
    Decided December 31, 1970.)
    Common Pleas Court of Clinton County.
    
      Mr. Frank B. Jandes and Mr. Charles R. Kirk, for plaintiff.
    
      Messrs. Ely, Moore & Tilbury and Mr. J. Robert True, for defendant Charles E. Bright.
    
      Messrs. Buckley & Miller and Mr. Frederick J. Buckley, for defendant Ronald J. Heeg.
   Swaim, J.

Plaintiff’s first pleading contains much detail, and uses surplusage of language, that is unnecessary. Defendant Ronald J. Heeg moves that plaintiff be required to replead herein, citing two authorities where upon removal of action from state to Federal courts, plaintiff was required to replead with short statement of the claim for relief.

In the “Report of Commissioners” to the General Assembly of Ohio, dated January 15, 1853, as to the proposed Code of Civil Procedure (which became law, effective July 1, 1853, by Act of March 11, 1853, 51 Ohio Laws 57-166), the Commissioners, in their comments, on pages 52-53, state:

“Pleadings should be plain and truthful. * * * The object of the provisions we have recommended, is, as we have said, to secure plainness and truthfulness. We do not aim to make pleading a system of dialectics, nor to lay the foundation for a new and cunning science of disputation. On the contrary, the aim is to avoid such a result and confine pleading within its proper bounds, making it a mere auxiliary in the administration of justice, never defeating it. We would not allow it to ‘impede the cause of justice, by deciding causes, not upon their merits, but by its rules which are sometimes only ceremonial.’ ”

In “Swan’s Pleading and Precedents” (1860, republished 1867), on pages 146-148 (cited in Richards v. Farm-Orama Associates, Inc. [1965], 3 Ohio Misc. 13, 19), it is said:

“The rule of pleading * * * does not provide how a cause of action or defense shall be stated, or what particularity or certainty of statement shall be made * * *.
“* * * independent of all rules of pleadings, the general principles of law require a certain state of facts to exist to entitle a party to his action and the relief he seeks, or to constitute a defense; * * * and these only, * # * the Code requires to be stated in the pleadings. * * *.
“It is obvious * * * that a work upon Code pleading, defining what facts should be stated in a petition, as a cause of action, or in a defense, would be a treatise upon civil jurisprudence.”

Thus, in the Ohio Rules of Civil Procedure, effective July 1, 1970, Rule 8, “General Rules of Pleading” (A) “Claims for Relief,” says: “A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. * * *”

And it is further stated in the same Rule 8, in (E) (1) ‘ ‘ Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.”

Rule 12 (F) “Motion to Strike,” states: “Upon motion made by a party # * * or upon the court’s own initiative, at any time, the court may order stricken from any pleading any insufficient claim or defense or any redundant, immaterial, impertinent or scandalous matter.”

There is no rule for the court to order a plaintiff to “replead” without showing specific reason for the same, after a ruling by the court upon a “Motion for Definite Statement,” under Rule 12 (E), or after a ruling by the court upon “Motion to Strike,’’ under Rule 12 (F).

The moving defendant Ronald E. Heeg does not bring his “Motion” for an order for plaintiff to “replead” under either Rule 12 (E) “Motion for Definite Statement” or Rule 12 (F) “Motion to Strike.”

The court is aware of Rule 8 (F) “Construction of Pleadings,” “All pleadings shall be so construed as to do substantial justice.”

The court finds that “substantial justice” will be done by allowing the plaintiff’s first pleading to remain as it is, as the same does state a good cause of action, even though it does contain much detail and much surplusage of language.

Motion overruled.  