Then, when the case was ready to be tried, the defendant joined the plaintiff in asking that judgment be rendered on the pleadings. Preparing for the new trial, the defendant withdrew the original answer and in its place filed another, denying every allegation of the petition. By reason of that decision it was established that the defendant had no legal defense to this action upon the account. ♧ At that trial the issues were drawn and the case decided, the judgment being reversed because of an erroneous instruction. ♦ When this case first was appealed to this court, the judgment of the trial court was reversed and the cause remanded for a new trial because the plaintiff failed to move for a directed verdict, and this court was thereby precluded from rendering a judgment for the plaintiff. However, there are other matters which must necessarily be considered in connection with this statement. Standing alone, in the absence of other facts, this is undoubtedly a correct statement of the law. ♥ The defendant's argument is based upon cases from this court holding that, where an answer is filed raising questions of fact, judgment cannot be rendered on the pleadings. ♤ From this judgment the defendant appeals, relying upon two propositions as grounds for reversal: First, that the trial court erred in rendering judgment on the pleadings in favor of the plaintiff second, that the trial court erred in failing to render judgment for the defendant on his motion for judgment on the pleadings. The trial court at that time rendered judgment for the plaintiff. At that time the plaintiff offered a motion for judgment on the pleadings, which was joined in by the defendant, who asked that judgment be rendered on the pleadings in favor of the defendant. ♣ After innumerable delays, the case stood for trial October 14, 1935. Upon motion, the defendant withdrew its original answer and filed a substitute in which the defendant denied the indebtedness, the plaintiff's corporate existence, and right to do business in the state. ♢ The present action was begun in 1929 upon the plaintiff's original petition. Having recovered judgment for only $747.27, the plaintiff appealed to this court, and the cause was reversed and remanded for new trial because of plaintiff's failure to move for a directed verdict. sued the defendants for $1,922.34, for merchandise furnished on open account. ♡ This matter was before this court once before in the case of Kling Bros. Ambrister, of Muskogee, for defendants in error. ![]() Bynum, of Henryetta, for plaintiff in error. From a judgment rendered in favor of plaintiff on the pleadings, the defendant appeals. Whipps for merchandise furnished on an open account. Where plaintiff moves for judgment on pleadings and defendant's attorney enters a motion for judgment for the defendant and states to the court that there is nothing but a question of law involved, he thereby waives issue of facts, and it is not error for the trial court to render judgment for plaintiff where the same is justified by the pleadings.Īppeal from Superior Court, Okmulgee County Harland A. ![]() Motion for judgment on the pleadings presents two questions to the court: (a) Is there a material issue of fact under the pleadings? (b) Which party is entitled to judgment? If the first question can be answered in the negative, the trial court can properly pronounce judgment on the merits for one of the parties.Ģ.SAME-Waiver of Issue of Factsby Moving for Judgment on Pleadings ♠ 1.PLEADING-When Judgment on Pleading Porper.
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