
    MONNETT v EMPIRE FINANCE CO
    Ohio Appeals, 2nd Dist, Franklin Co
    No. 1879.
    Decided April 2, 1931
    F. S. Monnett, Columbus, for Monnett.
    W. B. McLeskey, Columbus, for Empire Finance Company.
   HORNBECK, J.

It seems to us that the allegations of the petition which we have heretofore quoted are insufficient either to establish “another action pending,” or identity of parties or identity of subject matter. The allegation does not state that an action is or was pending; that any action, in fact, had been brought. The statement is that it had been undertaken. The names of the individuals appearing as parties in the Municipal Court are not set forth, other than the Empire Finance Company and it is not stated whether it is plaintiff or defendant. The subject matter of the action at no place appears other than to say that it is in replevin, but whether or not arising out of the transaction to which the petition-in the instant case refers, does not appear. Therefore, .there was not sufficient disclosure of facts required by sub-heading four of §11309 GC to warrant the sustaining of the demurrer.

It is urged that we can not consider the demurrer in this court, but as the action now stands here there is nothing before us which would justify a judgment, except a ruling upon the demurrer. It becomes necessary, therefore,' and is the only course we can take, to pass upon the demurrer; it being of necessity overruled, the judgment fails.

The "fact that, as suggested in the brief of counsel for defendant, the Empire Finance Company, in oral argument in this court, identity of parties and subject matter was admitted, will not clothe us with power to go beyond the record as it now stands nor do we consider facts aliunde the record adverted to in the briefs. It/Will -therefore be necessary if defendant, The Finance Company, desires further consideration in this court that it plead further. Motion to dismiss the appeal overruled.

ALLREAD, PJ, and KUNKLE, J, concur.  