Mascho El Al. v. Johnson , 49 Okla. 646 ( 1915 )

After a jury had been impaneled, counsel for the respective parties stated their case and the facts they expected the evidence to show to the jury, at the close of which plaintiff moved the court for judgment, which motion was sustained. This was error. In Sullivan v. Williamson et al., 21 Okla. 844,98 P. 1001, it is said:

"The petition stating a good cause of action, it was error for the court below to sustain a motion to dismiss the cause and render judgment against the plaintiff upon the opening statement of his counsel. 'Such a motion will not be granted merely because counsel fails to state in his opening statement facts sufficient to constitute a cause of action.' "

No motion for new trial was necessary to present this question to the court. Wagner v. A., T. S. F. Ry. Co.,73 Kan. 283, 85 P. 299; Cowart v. Parker-Washington Co. et al.,40 Okla. 56, 136 P. 153; Minnetonka Oil Co. v. ClevelandVitrified Brick Co., 48 Okla. 156, 149 P. 1136.

For the reasons stated, the order dismissing this case is set aside, the cause reinstated, and reversed and remanded.

All the Justices concur.

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