Johnson v. Cincinnati Gas & Electric Co.

1 Hosea's Rep. 241

• Court: Ohio Superior Court, Cincinnati
• Decided: July 1, 1907
• Status: Published

Opinion

Hosea, J.

The motion for judgment on the pleadings under R. S., 5328, of the code is not well taken. The point is that plaintiff failed to reply to the answer of defendant setting up-contributory negligence.

The spirit and purpose of the code provisions is to require and enable parties to dispose of all purely technical questions before reaching the jury on the facts. Prescribed forms of procedure are intended to reach substantial justice- and are not to be converted into traps for the unwary. There was a proper time in the progress in the case when the-omission of a reply should have been taken advantage of, but that time had long passed when the case had been tried to a jury as though the issue had been taken upon the allegation of the answer and upon the evidence in support of it.

The objection comes too late. Lovell v. Wentworth, 39 Ohio St., 614; Woodward v. Sloan, 27 Ohio St., 592; Hudson v. Voight, 9 Circ. Dec., 35 (15 R., 391).