Cleveland Concession Co. v. Cleveland

OPINION PER CURIAM: 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 O. Jur., Pleading, Sec. 287. 41 Am. Jur., Pleading, Sec. 336. *39 “2. A judgment upon the pleadings cannot be rendered when issue is joined upon a single material proposition.” Rhoades v McDowell, Receiver, 24 Oh Ap 94. The motion for judgment on the pleadings is overruled. DOYLE, PJ, STEVENS, J, and MONTGOMERY, J, concur.