Opinion
No. 20845
Decided April 19, 1948.
Pleading — Motion for judgment on pleadings — Not properly interposed, when.
A motion for judgment on the pleadings may not properly be interposed where the pleadings raise material issues of fact.
APPEAL: Court of Appeals for Cuyahoga county.
ON MOTION for judgment on pleadings.
Messrs. Spieth, Spring Bell and Mr. Morton M. Stotter, for the motion.
Mr. Lee C. Howley, director of law, Mr. Joseph H. Crowley, Mr. Robert J. Selzer and Mr. Robert M. Morgan, contra.
As we construe the pleadings in this appeal on questions of law and fact, they do not present only questions of law for determination by the court.
The petition is so drawn, that the court cannot know what the operative parts of the contract between appellant and appellees are.
The answer, although admitting certain allegations of appellant's petition, specifically denies certain portions thereof, and generally denies its averments not admitted.
There are thus created issuable facts, or direct issues, upon material propositions — particularly, performance by appellant — which would require the introduction of evidence by appellant to entitle it to judgment.
In such situation a motion for judgment on the pleadings may not properly be interposed. 31 Ohio Jurisprudence, Pleading, Section 287; 41 American Jurisprudence, Pleading, Section 336.
"2. A judgment upon the pleadings cannot be rendered when issue is joined upon a single material proposition." Rhoades v. McDowell, Recr., 24 Ohio App. 94, 156 N.E. 526.
The motion of the appellant for judgment on the pleadings is overruled.
Motion overruled.
DOYLE, P.J., STEVENS and MONTGOMERY, JJ., concur.
DOYLE, P.J., and STEVENS, J., of the Ninth Appellate District, and MONTGOMERY, J., of the Fifth Appellate District, sitting by designation in the Eighth Appellate District.