Basconi v. Delli

OPINION Per CURIAM:

This case is reversed for error of the trial court in sustaining the demurrer to the first cause of action of the second amended *228 petition and in rendering judgment of dismissal of the first cause of action. The cause is remanded to the Municipal Court of Cleveland with instructions to overrule the demurrer and for further proceedings according to law.

This Court’s ruling is based not on any question of affirmance or disaffirmance of a contract by a minor upon attaining majority but solely on the ground that in ruling upon a demurrer to an amended petition which has been filed in place of an originad petition, the amended petition canno.t be aided or omission therein supplied by averments in the original petition, not contained in the amended one. Ironton v. Wiehle, 78 Oh St 41; 31 O. Jur. “Pleading” Sec. 143 page 704.

The frequent statement that a demurrer searches the record and admits facts that are well pleaded does not mean that in this case the court may examine either the original petition or the amended petition^ the demurrer having been filed to the second amended, petition. On trial of the case, any admissions or statements under oath in the original or amended petition may be considered together with any other evidence on the subject of affirmance by plaintiff of the contract which plaintiff alleges was entered into during minority.

Judgment reversed and cause remanded for further proceedings according to law. Exc. Order see journal.

SKEEL, PJ, HURD, J, THOMPSON, J, concur.