Mayfield v. Kovac

8 Citing cases

  1. Diversified Foods v. First Nat. Bank of Boston

    985 F.2d 27 (1st Cir. 1993)   Cited 21 times
    Recognizing that a good-faith belief in exclusive federal jurisdiction might excuse a failure to bring a federal claim as part of a previous state-court action, but rejecting that excuse where the belief in exclusive federal jurisdiction was "formed in the face of two circuit decisions to the contrary."

    Indeed, in Thompson v. Gaudette, 148 Me. 288, 92 A.2d 342 (1952), the Maine Supreme Judicial Court said that the rule against splitting a cause of action will be waived unless the defendant asserts it "at the earliest opportunity." 92 A.2d at 348 (quoting Mayfield v. Kovac, 41 Ohio App. 310, 181 N.E. 28, 30 (1931)). In our case, the banks at the outset pleaded claim-splitting in their answer and maintained that position throughout the case.

  2. Shaw v. Chell

    176 Ohio St. 375 (Ohio 1964)   Cited 18 times
    Allowing claim-splitting where defendant failed to timely object

    "* * * the rule [against splitting causes of action] * * * is primarily for the benefit of defendants, and being for their benefit they may waive it; this waiver will be presumed if a plaintiff maintains two suits against a defendant at the same time for different items of the same demand, and he [defendant] fails to interpose timely objection." To the same effect are Cassidy v. Berkovitz (1916), 169 Ky. 785, 185 S.W. 129; Mayfield v. Kovac (1932), 41 Ohio App. 310, 181 N.E. 28; Todd v. Central Petroleum Co. (1942), 155 Kan. 249, 124 P.2d 704; Glazier v. Singer (1939), 257 App. Div. 84, 12 N.Y. Supp. (2d), 245; Stapp v. Andrews (1938), 172 Tenn. 610, 113 S.W.2d 749; annotation, 62 A.L.R., 263; and 1 American Jurisprudence (2d) (1962), 647 and 651, Sections 127 and 132. In Fox v. Althorp (1883), 40 Ohio St. 322, the syllabus reads:

  3. Thompson v. Gaudette

    92 A.2d 342 (Me. 1952)   Cited 7 times
    Requiring objection "at the earliest possibility"

    1 C.J.S. 1339, Sec. 105, 1 C.J. 1120, Sec. 304, Dils v. Justice, 127 S.W. (Ky.) 472; Craig et al. v. Broocks, 127 S.W. (Tex.) 572, Roby v. Eggers, 29 N.E. (Ind.) 365. The defendant, however, may waive the enforcement of the rule against splitting the cause of action and such a waiver will be presumed unless timely and proper objection is made. 1 C.J.S. 1312, Sec. 102 g. The rule relative to waiver is well stated by the court in Mayfield v. Kovac, 41 Ohio App. 310, 181 N.E. 28, 30: "However, we think that it is equally well established by the authorities that the rule prohibiting the splitting of a cause of action is primarily for the benefit of the defendant, and that he may waive the same, and that, where two actions are brought when but one should have been brought, and the person against whom they are brought fails to interpose in the second action, and at the earliest opportunity, a plea in bar, or otherwise object to the trial of such action, and submits the case upon the merits, he will be held to have impliedly consented to the splitting of said single cause of action.

  4. Vane v. C. Hoffberger Co.

    77 A.2d 152 (Md. 1950)   Cited 12 times
    In Vane v. C. Hoffberger Company, 196 Md. 450, 77 A.2d 152 (1950), James H. Vane and Margaret Vane, the owners of real property, suffered fire damage to their building and to its contents.

    In Hardwicke-Etter Co. v. City of Durant, 77 Okla. 202, 187 P. 484, cited by appellants, it was held that consent to the splitting of causes will be presumed unless the former action in bar is pleaded. In Mayfield v. Kovac, 41 Ohio App. 310, 181 N.E. 28, 30, relied on by appellants, it was held that the defendant had waived his right to object to the division of causes by failure to interpose "in the second action, and at the earliest opportunity, a plea in bar, or otherwise object." In National Union Fire Insurance Company v. Denver R.G.R. Co., 44 Utah 26, 137 P. 653, cited by the appellants, it was held that the splitting of causes could not be raised by a general demurrer and the objection was waived if no specific objection was made.

  5. Vasu v. Kohlers, Inc.

    145 Ohio St. 321 (Ohio 1945)   Cited 49 times
    In Vasu, supra, the insurer's subrogation claim, a derivative claim making the insurer as assignee a successor in interest to a part of the primary claim of the insured, a predecessor in interest, was tried first resulting in a verdict in favor of the tort-feasor.

    ns of the Courts of Appeals of this state support the proposition that, under Section 11241, General Code, providing that actions shall be prosecuted in the name of the real party in interest, an insurance carrier which has paid a property damage claim for injury to its assured's automobile may, as subrogee, maintain an action for reimbursement against the party who wrongfully caused the damage, independent of any claim of the owner for personal injuries growing out of the same accident. See LeBlond Schacht Truck Co. v. Farm Bureau Mutual Automobile Ins. Co., 34 Ohio App. 478, 171 N.E. 414; Allamong v. Falkenhof, 39 Ohio App. 515, 177 N.E. 789, motion to certify overruled; Barnhill v. Brown, 58 Ohio App. 188, 16 N.E.2d 478; North River Ins. Co. v. Redman, supra; Central Greyhound Lines, Inc., v. State Automobile Mutual Ins. Co., 17 Ohio Law Abs., 419; Strasser v. Blain Dairies, Inc., 27 Ohio Law Abs., 108; Norwich Union Fire Ins. Society v. Stang, 18 C. C., 464, 9 C. D., 576. Contra, Mayfield v. Kovac, Jr., 41 Ohio App. 310, 181 N.E. 28. See, also, annotations in 64 A. L. R., 663, and 127 A. L. R., 1081.

  6. Lake v. Jones

    89 Md. App. 579 (Md. Ct. Spec. App. 1991)   Cited 11 times
    Adopting RESTATEMENT (SECOND) OF JUDGMENTS, § 26 and theory that failure to object to splitting of causes of action will act as acquiescence

    J. Friedenthal, M. Kane A. Miller, Civil Procedure § 14.3 (1985). There are similar holdings in Southern Stock Fire Ins. Co. v. Raleigh, C S. Railway Co., 179 N.C. 290, 102 S.E. 504 (1920) (the defendant, having answered to the merits instead of objecting to the division of actions by plea or motion, was held to have acquiesced in such division); Hardwicke-Etter Co. v. City of Durant, 77 Okla. 202, 187 P. 484 (1920) (consent to the splitting of causes will be presumed unless the former action in bar is pleaded); Mayfield v. Kovac, 41 Ohio App. 310, 181 N.E. 28 (1932) (defendant waived his right to object to the division of causes by failure to interpose, "in the second action, and at the earliest opportunity, a plea in bar, or otherwise object"); and National Union Fire Ins. Co. v. Denver R.G.R. Co., 44 Utah 26, 137 P. 653 (1913) (defense based on splitting of causes could not be raised by general demurrer and is waived if no specific objection was raised). As noted supra, §§ 24-25 of Restatement (Second) of Judgments deal with the res judicata effect of splitting a cause of action.

  7. Biggs v. Bernard

    130 N.E.2d 152 (Ohio Ct. App. 1954)   Cited 6 times
    In Biggs v. Bernard, supra, the defendant-vendor's executor claimed that the broker was not entitled to his commission since the purchaser had failed to meet a condition precedent and the purchase contract was not enforceable. The appellate court did not find that the broker was entitled to a commission.

    It is significant in considering the judgment now before the court that a judgment rendered on the pleadings is a judgment on the merits and, when sustained, results in a final judgment. Rhoades v. McDowell, Recr., 24 Ohio App. 94, 156 N.E. 526; Mayfield v. Kovac, 41 Ohio App. 310, 181 N.E. 28; 31 Ohio Jurisprudence, 884, Pleading, Section 292. It follows from the foregoing proposition that if the pleadings and all reasonable inferences deducible therefrom present an issue of fact, the judgment can not stand and must be reversed in order that such issues of fact may be determined upon a trial of the cause as required by law.

  8. Stange v. Campbell

    75 Ohio App. 316 (Ohio Ct. App. 1945)   Cited 3 times

    " The characteristics of such a motion and judgment are set out in Mayfield v. Kovac, Jr., 41 Ohio App. 310, 311, 181 N.E. 28, as follows: "In determining whether or not it was error for the court to render such judgment, we must keep in mind the fact that a motion for a judgment on the pleadings is similar to a demurrer, for it raises only questions of law, and involves the substance rather than the form of the pleadings; and a court in passing upon such motion is required to liberally construe the pleadings in favor of the party against whom said motion is made and give to the party against whom the motion is made every reasonable inference deducible from the pleadings, and the court is not permitted to consider anything not shown by the pleadings.