
    No. 528
    BUTTERICK PUB. CO. v. MAURICE and ANNIE SMITH
    No. 18680.
    Ohio Supreme Court
    Pending on motion to require Hamilton Appeals to certify record.
    677. JUDGMENT — Summarily striking-answer from file and entering.
    Attorneys — Edward H. Brink, William F. Fox and Clark Wilby, for plaintiff. Alvin H-Reive, for defendant; all of Cincinnati.
   The statement of plaintiffs in error, the Butterick Pub. Co., filed in this case, claims that in September, 1922, Maurice and- Annie Smith, the defendants, who were conducting a store in Cincinnati, contracted to purchase certain merchandise from it. The goods so purchased were shippjed, but no part of the purchase price Was paid- In November, 1923, the Butterick Co. brought action in the Supreme Court of Cincinnati to recover the amount, and sued defendants as partners doing business under the name of M. & A. Smith. Annie Smith answered, and denied the allegation of the petition, and Maurice filed a similar general denial, and set up a second defense that alleged an agreement to settle the claim, and the refusal of the Butterick Co. to abide by that agreement.

The Butterick Co. filed a motion to strike the answer of Maurice Smith from the files, and a supplementary motion for a summary judgment against him, upon the ground that the answer was false and a sham, and filed for the sole purpose of delay. At the hearing, a similar motion was filed against the answer of Annie Smith, and the court entered judgment, finding that the answers of both defendants were ‘fals and sham, filed in bad faith and for sole purpose of delay,” and ordering that the plaintiff recover judgment against both defendants.

This judgment was reversed by the Court of Appeals, and it is claimed that the Court of Appeals erred in reversing the court below, as it had before it merely a transcript of the docket and journal entries and original papers from the Superior Court, not what occurred at the hearing below or the evidence there submitted.  