
    No. 219
    MATRE v. MATRE et
    Hamilton Common Pleas
    No. 197281.
    Decided December, 1925
    791. MOTIONS — 1. Power of court to strike sham pleadings from the files is limited to answers and pleas.
    2.The disposition of a petition on this kind of a motion would have the effect of denying the parties a formal trial.
    Attorneys — Thomas L. Michie, Albert R. Hoffman and J. A. Shuey for plaintiff; Franks & Franks for defendants; all of Cincinnati.
   DARBY, J.

Anna Maitre filed her petition in the Hamilton Common Pleas against Joseph Maitre et al. to which petition he filed a motion to strike same from files for the reason that it was a sham and false pleading and filed in bad faith.

Upon hearing of the motion defendants offered to prove that in the Court of Domestic Relations the subject matter of this action was in litigation and the rights of the parties had been finally determined in such action. The Court held:

1. The defendants, in other words, seek, under their motion, to raise the plea of res judicata without setting it up formally and without trial except on such motion.
2. There is no right, either at common law or under the Code, to treat a petition as a sham.
3. That characterization has been limited to answers and pleas filed to the petition or declaration.
4. The distinguishing characteristic of a sham answer is falsity, and, to warrant applying the severe rule of striking it off the record, the matter must be shown to be unquestionably false and not pleaded in good faith.
5. If a motion of this kind could be allowed in this case, it would also be permissible in any case in which the defendant has filed a motion and affidavit of the falsity of plaintiff’s petition.
6. The procedure would then be for the court to dispose of that motion on the evidence produced before it, and would result in denying parties formal trial.
7. The plea of res judicata must be set up in the answer and disposed of in proper form.

Motion overruled.  