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Kiger v. Charity Newsies

Court of Appeals of Ohio
Mar 26, 1963
193 N.E.2d 926 (Ohio Ct. App. 1963)

Opinion

No. 7119

Decided March 26, 1963.

Pleading — Negligence action — Motion for judgment on pleadings — Error to grant, when — Pre-trial conference and case called for trial.

It is error for a trial court, in a negligence action, to grant judgment for defendant on the pleadings, for failure to state a cause of action, where a petition and an answer had been filed, a pre-trial conference held and the case called for trial.

APPEAL: Court of Appeals for Franklin County.

Mr. Judson C. Kistler and Mr. R. Brooke Alloway, for appellant.

Messrs. Bricker, Evatt, Barton, Eckler Niehoff, for appellees.


This is an appeal from a judgment of the Common Pleas Court of Franklin County, Ohio. Plaintiff-appellant duly filed his petition for damages based on negligence. An answer was filed, pre-trial conference held, and the case called for trial. At that point it became apparent for the first time, at least to the court, that the petition failed to state a cause of action in that it failed to allege any act of negligence. Appellant moved for leave to amend by alleging acts of negligence. The motion was denied. The court then granted a motion of defendants-appellees for judgment on the pleadings. The entry concludes as follows:

"The petition of plaintiff is dismissed and judgment is rendered for defendants at the costs of the plaintiff. * * *."

The specific question presented is whether under these facts the court erred in granting judgment.

The exact question presented here has been decided by the Supreme Court in Morton v. Fast, Exr. (1953), 159 Ohio St. 380. A petition and answer had been filed. Defendant then filed a motion "for an order of abatement and dismissal." The third paragraph of the syllabus states:

"Where a motion for judgment on the pleadings is made before trial and at a time when in effect such motion represents no more than a mere substitute for a demurrer to the petition, the plaintiff has the same rights with regard to amendment of a petition as he would have had if such a demurrer had been filed; and, if such motion is granted, plaintiff has the same rights with regard to amendment of his petition as he would have had if such a demurrer had been sustained."

See, also, Galloway v. Columbus-Broad Corp., 72 Ohio Law Abs., 315 (Common Pleas Court, Franklin County, 1954). Even in the absence of the Fast case, we would think the court was in error in granting judgment.

The question of the overruling of the motion to amend has not been directly presented. However, attention is directed to the provisions of Sections 2309.56 and 2309.58, Revised Code, in the light of the holding in Fast that a motion for judgment on the pleadings under these circumstances creates the same rights in the plaintiff as if a demurrer had been filed.

The judgment of the Common Pleas Court is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

DUFFY, P. J., and BRYANT, J., concur.


Summaries of

Kiger v. Charity Newsies

Court of Appeals of Ohio
Mar 26, 1963
193 N.E.2d 926 (Ohio Ct. App. 1963)
Case details for

Kiger v. Charity Newsies

Case Details

Full title:KIGER, A MINOR, APPELLANT v. CHARITY NEWSIES, INC., ET AL., APPELLEES

Court:Court of Appeals of Ohio

Date published: Mar 26, 1963

Citations

193 N.E.2d 926 (Ohio Ct. App. 1963)
193 N.E.2d 926