Lakewood Center Co. v. Swimmer , 6 Ohio Law. Abs. 514 ( 1928 )

FULL TEXT.

VICKERY, J.

This case came into this court on a petition in error to the Common Pleas Court of Cuya-hoga County, the purpose being to reverse a judgment granting an injunction against the prosecution of a forcible entry and detainer case before the Justice Court in what was then Roekport Township in the City of Lakewood, Ohio.

It seems that Swimmer had leased the premises described in the petition from the plaintiff in error for a period of five years at a rental of One Hundred and T.en Dollars a month payable in advance, and that during the. pendency of this lease the plaintiff had neglected in one particular instance to pay the rent promptly, but gave a check which was not cashed for want of funds, of which, we are informed, Swimmer had no knowledge, but thought that the rent had been paid. On the 3rd of the next month a notice was served upon him to vacate the premises and a landlord’s complaint was filed before Justice of the Peace Rexford C. Hyre of Lakewood, and while such proceedings were pending, an action was brought in the Common Pleas Court to enjoin the proceedings on the ground that the defenses that plaintiff had were equitable and could not be used in a court of the Justice of Peace who had no equity jurisdiction and went on to make other allegations which set up fairly the status of this case. A temporary restraining order was granted and a demurrer was filed to the petition which was overruled, and plaintiff in error not desiring to proceed further,, prosecuted error to this court.

The record shows, or at least it is admitted in open court, that during all this time the plaintiff, Swimmer, had been in possession occupying this store and had paid the rent which had been accepted and he is now occupying as a tenant, and that the rent in question had long since been paid. It is urged, however, that as the complaint did not have to set up on what grounds they sought to oust the tenant, that the defendant, Swimmer, had no knowledge as to what they proposed to do or what reason they intended to advance as to why the tenant should be ousted from his leasehold, and, therefore, that this petition for injunction, to use the language of the learned counsel simply set up a man of straw to proceed to knock him down.

However, this may be, the petition sets up a cause of action and the court granted an injunction upon it and we do not see that he committed any error in doing so.

The judgment will, therefore, be affirmed.

(Sullivan, PJ., and Levine, J., concur.)