Fewster v. Goddard

25 Ohio St. (N.S.) 276

Opinion

By the Court.

The rulings and judgment of the Common Pleas were clearly erroneous. The answer sets up new matter in confession and avoidance. In the absence of a reply no issue was made, and defendant was entitled to judgment. The parties seem to have proceeded upon the theory that a reply had been filed. The supposed issue which they tried to the jury, was that of payment or no payment. Upon such an issue the defendant would have been entitled to open and close, and the court erred in-holding otherwise, and in rejecting the rebutting evidence-offered by the defendant.

Judgment reversed.