Patterson v. Lamson , 44 Ohio St. (N.S.) 487 ( 1886 )

By the Court.

The suit below was brought by the plaintiff to quiet title to a piece of land, and was appealed to the district court of the county.

The second defense of the answer set up new matter, to which the plaintiff demurred, and the court, on motion of the defendants, reserved the cause for decision in this court; and, “for the purpose of the hearing upon demurrer only,” found all the allegations of the second defense to be true, and stated the questions of law arising thereon. It is also stated in the finding that “ no testimony was offered upon the hearing of the cause” by either side as to the averments of the second.defense; and that “the plaintiff asks that, in case said demurrer be overruled, his right to file a reply to said second defense, and to contest the averments thereof by testimony, be reserved to him.”

Held, that this is not such a finding as was recognized by the statute then in force, section 455 Revised Statutes, as amended April 18, 1888 (80 Ohio L. 169); that it required a positive, and not a provisional, findiug of facts, upon which a final judgment might be rendered. The finding as made being a provisional one, the questions arising thereon may or may not be material to a determination of the case. The plaintiff may, by his reply, controvert some or all of the material allegations of the defense, and it may fail for want of proof upon the trial, so that a determination of the questions of law arising upon its averments would be a fruitless one, so far as the litigation between the pai’ties is concerned.

The cause is therefore stricken from the docket of this court, and the papers ordered to be returned to the circuit court of the county, to be there proceeded in -as-if no order of reservation had been made, and the cause had continued upon the docket of the district court, and its successor, the circuit court, of the county.