
    THE SCINTILLA RULE.
    [Circuit Court of Hamilton County.]
    Emily Barr v. Chester M. Poor, Executor.
    Decided, January 10, 1906.
    
      Statute of Frauds — Remedy—Res Adjudicata — Scintilla Rule — Duty of Nisi Prius Judges to Follow.
    
    1. The statute of frauds prescribes a rule of procedure and relates to the remedy (56 O. S., 101).
    2. Res adjudicata can not be based upon matter pertaining to remedy only, as the kind of proof required, but must rest upon a determination of the essential merits of the .controversy.
    3. Until the Supreme Court sees fit to modify or abolish the “scintilla rule,” it is the duty of a nisi prius judge to follow and apply it, notwithstanding his personal inclination, or his opinion as to the merits of the case.
    Jelke, P. J., Gifeen, J., and Swing, J., concur.
   We are of opinion that the conclusion of the court below in overruling the demurrer to the reply was right, for the reasons set out in the opinion, per Swing, J., in 2 N. P. — N. S., page 208.

We regret'that the established law seems to require this conclusion, as it is hardly consistent with right that a plaintiff should be permitted to affirmatively allege a fact which on demurrer becomes determinative of that particular action, and then be permitted in a subsequent action, to allege the exact contrary. The only thing which saves the former judgment from being res adjudicata as to the second action is the circumstance that the fact pertains to the remedy, procedure and measure of evidence and not to the essential merits of the controversy. This being so, brings us to an examination of the correctness of the action of the court below in arresting the case from the jury, and giving judgment for the defendant.

An examination of the record shows that there is a scintilla of evidence upon all the essential points, and this rule demands that the ease should have been submitted to the jury. This is one of the eases where ,the court would, like to evade the force and effect of the scintilla rule, as the record hardly presents a meritorious action, or a ease where a verdict, had there been one for the plaintiff, could be permitted to stand, and yet the law requires a submission to the jury.

Frederick E. Niederhelman, for plaintiff in error.

Hollister (& Hollister, for defendant in error.

Judgment will be reversed, and cause remanded for a new trial.  