Call v. Cameron

OPINION

By STEVENS, J:

The action filed in the Municipal Court of Cleveland sought the recovery of damages arising from a collision between cars driven by the plaintiff, Call, and the defendant, Cameron.

The matter came on for hearing before a Judge of the Muncipal Court, whereupon plaintiff introduced his evidence and rested. Defendant’s counsel then arose and presented a motion (without specifying what kind of a motion) and plaintiff’s counsel joined therein.

Assuming that the motion was made one for judgment for defendant, and that plaintiff’s joining therein sought a judgment for plaintiff, as the trial court understood the intendment of the motion, the trial court then overruled defendant’s motion for judgment and sustained plaintiff’s motion.

The following entry was made:

“April 2, 1954: Case called, parties in court; trial had; defendant’s motion joined in by plaintiff for judgment at close of plaintiff’s case, is granted and judgment rendered in favor of plaintiff on the issues joined and against defendant for costs. Court finds and renders judgment for plaintiff against defendant for $363.62 and costs.”

It is apparent from the foregoing that the trial court, after overruling defendant’s motion for judgment, made at the conclusion of plaintiff’s evidence and joined in by plaintiff, entered a judgment for plaintiff on plaintiff’s motion, without giving the defendant any opportunity to present his defense, and without defendant having rested his case, despite the statement of defendant’s counsel that he wanted a ruling on his motion “before going forward with the defense.”

We hold the procedure adopted herein to be prejudicially erroneous to appellant, on the authority of City of Canton v. Pryke, 5 Oh Ap 365.

The judgment will be reversed and the cause remanded for further proceedings according to law. Exceptions noted. Order see journal.

DOYLE, PJ, HUNSICKER, J, concur.