Sentich v. Village of Cleveland Hts. ( 1928 )

OPINION OF COURT.

The following is taken, verbatim, from the. opinion.

MIDDLETON, PJ.

We are of the opinion that this evidence may not be considered in determining the correctness of the judgment on the motion for judgment on the pleadings. In determining that •motion, the trial court was confined to the pleadings alone, and if it was necessary to take evidence to explain some of the circumstances involved in the pleadings, it would necessarily follow that such evidence must be heard by a jury. However, independent of this evidence and upon the pleadings alone, we think the judgment of the court was correctly entered. There is nothing in the amended petition which may be said to relieve the plaintiff from the bar of the statute of limitations, or bring him within the provisions of Section 11283 GC. This is so because it nowhere-appears in the petition whether the dismissal was voluntary by the plaintiff, or whether such dismissal was involuntary in respect to plaintiff and due to matters not within his control. The entry which he pleads in his reply also fails to show the things necessary to give him the protection of Section 11344, supra.

While it is true that the plaintiff, in his reply, makes a general denial to what is said in the answer, yet the burden does not rest upon the defendant, under the pleadings as they now appear, but the plaintiff, in his amended petition, having attempted to relieve himself of the bar of limitations, must state facts which, if true, would accomplish that- result. This the plaintiff has failed to do, both in his amended petition and in his reply to the defendant’s answer, and the judgment, therefore, must be affirmed.

(Mauck and Thomas, JJ., concur.)