
    No. 279
    McLOUGHLIN v. RUBLE
    No. 18382.
    Ohio Supreme Court
    Error to Lucas Court of Appeals
    On motion to certify,
    docketed Feb. 22, 1924,
    2 Abs. 132.
    Motion overruled, April 22, 1924,
    2 Abs. 291.
    941. PRACTICE — Judgment upon the pleadings — If issues made.
   The narrative of this case will be found in the Court of Appeals opinion, post (this issue), page 329.

The plaintiff herein; MeLoughlin, claims the Court of Appeals erred in reversing the judg-men of the Common Pleas in her favor against Ruble, inasmuch as a motion for judgment opon the pleadings can be had only where the facts are admitted or agreed upon and there remains only a question of law for decision. In this case there was an issue of fact, and no such judgment could be given. Upon the pleadings without reference to the evidence, defendant Ruble was not entitled to a judgment.

No motion for a judgment for Ruble notwithstanding the verdict of the jury was made by counsel for Ruble, but he renewed his motion for a directed verdict at the conclusion of all the evidence.

It was proper for the court to present the evidence to the jury for consideration, as it was the province of the jury to determine the issues of fact by the evidence. There was more than a scintilla to support claim of plaintiff, and as the rule has become stare decisis in Ohio, it was the duty of the trial court to submit the cause to it. for a verdict.

The Court of Appeals was without authority in law to enter final judgment for Mc-Loughlin, but should have remanded the case for retrial or further proceedings under the law.  