
    STATE ex FOSTER v EVATT et
    Ohio Appeals, 2nd Dist, Franklin Co
    No 3325.
    Decided Dec 26, 1941
    Matthew L. Bigger, Columbus, and Hart, McHenry & Jones, Canton, for plaintiff and contra the motion.
    Thomas J. Herbert, Attorney General, Columbus, and Perry L. Graham, Asst. Atty. Gen’l., Columbus, for defendant and for the motion.
   OPINION

BY THE COURT:

Submitted on motion of the plaintiff that it be ordered that the second defense in the answer to the second amended petition be heard in advance of the hearing on the issues joined between the second amended petition and the first defense of the answer on the ground that the second defense raises a plea of res judicata, a question of law only.

It is obvious, as suggested in the motion, that if the second defense is a good and sufficient defense to the cause of action set out in the amended petion, it would be advisable and in the interest of expedition and economy in proceedings incident to the ultimate determination of the case to have this first decided. Inasmuch as it appears to be solely a question of law dependent upon the effect of a recent decision of the Supreme Court of Ohio, we are in accord with the purposes to be accomplished if the motion is sustained, and we see no good reason why the cause may not be presented as suggested in the motion.

If the case goes to trial upon the issue joined by the first defense of the answer to the second amended petition, it is conceivable and probable that much time, effort and expense will necessarily be incurred to secure the requisite evidence for proper determination of the factual disputes. All of this may be avoided if the defense of res judicata is well made.

The motion will, therefore, be sustained and counsel may make preparation to submit the question to the Court at an early date. We will call the docket in Franklin County on Monday, January 5th, and if the cause is ready for submission at that time we will hear it or we will then make such order as is necessary to assure that the question under the second defense will be speedily determined.

Motion sustaind.

GEIGER, PJ., HORNBECK & BARNES, Jj., cdncur.  