Summary
In Meyer v. Daniel, 147 Ohio St. 27, 67 N.E.2d 789, it was held that "A motion for a judgment on the pleadings is in the nature of a general demurrer and presents only questions of law."
Summary of this case from Home Owners' Service Corp. v. HadleyOpinion
No. 30651
Decided June 26, 1946.
Appeal — No final order — Overruling motion for judgment on pleadings — Right reserved to go to jury.
CERTIFIED by the Court of Appeals for Hamilton county.
The plaintiff filed in the Court of Common Pleas a petition to recover $350. The defendant answered, plaintiff's counsel were notified that the case was set for trial and the plaintiff filed a reply. One week later the plaintiff filed a motion for judgment on the pleadings and plaintiff's counsel were notified that the case was assigned for hearing on the motion for judgment on the pleadings on the date which formerly had been set for the trial. On such date, the defendant was given leave to file a motion to strike the reply from the files or in the alternative to strike certain statements from the reply, which motion was thereupon filed by defendant. Thereafter plaintiff filed a motion to strike from the files defendant's motion directed to the reply.
The Court of Common Pleas, by three entries journalized the same day, overruled plaintiff's motion for judgment on the pleadings, sua sponte struck certain statements from plaintiff's reply and granted plaintiff's motion to strike from the files defendant's motion to strike, "on the ground that defendant's motion * * * was filed after the cause of action had been submitted to the court by reason of plaintiff's motion for judgment on the pleadings * * *."
Plaintiff then filed a notice of "intention to appeal from the order of said court overruling said appellant's motion for judgment on the pleadings." The defendant filed in the Court of Appeals a motion to dismiss the appeal, "for the reason that there is no final order in the Common Pleas Court from which said appeal can be taken."
The Court of Appeals, adhering to a former pronouncement in J. F. Harig Co. v. City of Cincinnati, 61 Ohio App. 314, 22 N.E.2d 540, sustained the motion and dismissed the appeal for the reason that "the overruling of a motion for judgment on the pleadings is not a final order constituting a predicate for appeal to the Court of Appeals." The judges of such court, finding the judgment, upon which they had agreed, to be in conflict with the judgment of the Court of Appeals for Mahoning county in Marietta v. Nichol, 72 Ohio App. 387, 52 N.E.2d 647, certified the record to this court for review.
Messrs. Krusling Krusling, for appellant.
Mr. Robert F. Dreidame, for appellee.
We are in accord with the Court of Appeals in its conclusion that the overruling of a motion for judgment on the pleadings is not a final order upon which an appeal may be predicated.
Counsel for appellant rely upon Section 11601, General Code, which permits judgment to be rendered when upon statements in the pleadings one party is entitled by law to judgment in his favor.
A motion for judgment on the pleadings is in the nature of a general demurrer and presents only questions of law. 31 Ohio Jurisprudence, 877, Section 286; State, ex rel. Dunphy, v. Graham, Judge, 146 Ohio St. 547, 66 N.E.2d 321. Appeal may not be taken from the overruling of a demurrer or a motion for judgment on the pleadings unless the pleader stands on the demurrer or such motion and permits judgment to be entered against him.
The motion for judgment on the pleadings in the present case expressly reserved in plaintiff the right to go to the jury in the event that motion was overruled.
Section 12223-2, General Code, reads:
"An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment, * * * is a final order which may be reviewed, affirmed, modified, or reversed * * *."
The entry of the Court of Common Pleas in the present controversy was not a final order which determined the action, the Court of Appeals did not err in dismissing the appeal and, therefore, the judgment of that court is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.