
    MASCHO et al. v. JOHNSON.
    No. 5049.
    Opinion Filed November 23, 1915.
    Rehearing Denied December 21, 1915.
    Second Petition for Rehearing Denied January 11, 1916.
    (153 Pac. 630.)
    PLEADING — Judgment on Pleadings and Opening Statement. Where the answer of defendants stated a defense to the cause of action set out in the petition, it was error to render judgment on the pleadings and.opening statement of counsel. ■ ■
    (Syllabus by the Court.)
    
      Error from District Court, Lincoln County; Chas. B. Wilson, Jr., Judge. ■ ,
    
    Action by Sallie M. Johnson against A. A. Mascho and others. Judgment for plaintiff, and defendants bring error.
    Reversed and remanded.
    
      Johnson & Cordell, for plaintiffs in error.
    
      Hoffman & Foster and Rittenhouse & Rittenhouse, for defendant in error.
   HARDY, J.

After a jury had been impaneled, counsel for the respective parties stated their case and the facts they expected the evidence to show to the jury, at the close of which plaintiff moved the court for judgment, which motion was sustained. This wag error. In Sullivan v. Williamson et al., 21 Okla. 844, 98 Pac. 1001, it is said:

“The petition stating a good cause of action, it was error for the court below to sustain a motion to dismiss the cause and render judgment against the plaintiff upon the opening statement of his counsel. ‘Such a motion will not be granted merely because counsel fails to state in his opening statement facts sufficient to constitute a cause of action.’ ”

No motion for new trial was necessary to' present this question to the court. Wagner v. A., T. & S. F. Ry. Co., 73 Kan. 283, 85 Pac. 299; Cowart v. Parker-Washington Co. et al., 40 Okla. 56, 136 Pac. 153; Minnetonka Oil Co. v. Cleveland Vitrified Brick Co., 48 Okla. 156, 149 Pac. 1136.

For the reasons stated, the order dismissing this case is set aside, the cause reinstated, and reversed and remanded.

All the Justices concur.  