Opinion
No. 32061
Decided December 13, 1950.
Pleading — Answer alleging new matter constituting full defense to action — Such matter deemed admitted, when — Reply necessary to join issues, but not filed — Motion to dismiss properly sustained.
1. Where a plaintiff in his petition alleges that he is the owner and entitled to the possession of certain real property and such petition is met by answer alleging new matter which constitutes a full defense to the action, a reply is necessary to join the issues. In the absence of such reply, defendant's motion to dismiss on the pleadings is properly sustained.
2. If matters embodied in an answer are of such a nature that they should be replied to and no reply is forthcoming, such matters are deemed to be admitted.
APPEAL from the Court of Appeals for Guernsey county.
On April 28, 1948, John Andrews filed his petition in the Court of Common Pleas of Guernsey County against John W. DeCessna, Ralph Forshey, W.J. Daub and Eleanor Daub. For his first cause of action plaintiff alleges that he has title to and is entitled to the possession of the property in the city of Cambridge known as the New National Hotel, located at 835 Wheeling avenue, and that the defendants John W. DeCessna and Ralph Forshey unlawfully withhold the possession thereof from plaintiff.
For his second cause of action plaintiff alleges that defendants W.J. Daub and Eleanor Daub claim some right, title or interest in and to the property described in the first cause of action.
In the prayer of his petition plaintiff asks "judgment for the recovery of the premises aforesaid and for damages arising out of the unlawful withholding of their possession and use thereof and that the defendants W.J. Daub and Eleanor Daub be required to set out whatever claims they may have in and to said property or be forever barred therefrom."
All the material allegations of the petition are as set forth above.
Defendant John W. DeCessna, in his answer, after a general denial, alleges there is a written lease of the premises to W.J. Daub and Eleanor Daub, together with a written agreement between plaintiff and the Daubs respecting the same. Such lease is attached to the answer as an exhibit. DeCessna's answer states further that the Daubs have complied with all the terms and conditions of the lease and agreement aforementioned and have exercised the options accorded them thereunder, including the option to purchase the furniture, equipment and fixtures contained in the New National Hotel.
The answer then continues with the allegations that on October 31, 1947, defendant DeCessna and his wife entered into a written contract with the Daubs whereby they took over the management of the New National Hotel and that they are presently engaged in such pursuit.
Defendants W.J. Daub and Eleanor Daub each filed an amended answer, which answers are similar in content. They deny generally the allegations of the petition and then assert that the Daubs entered into possession of the premises involved under a written lease beginning March 1, 1944, and ending February 28, 1949; that they exercised an option contained therein for the purchase of the furniture, fixtures and equipment in the hotel, which automatically extended the lease for an additional number of years; that they have since paid the stipulated monthly rental of $550 each and every month for the hotel premises and the stipulated sum of $200 monthly to be applied on the purchase price of the furniture, fixtures and equipment; and that all payments due plaintiff have been made to and accepted by him through the month of October 1948.
Defendants Daubs allege further that they are occupying the premises under the terms and provisions of the aforesaid lease.
Attached to each amended answer are some 24 interrogatories, which it is asked that the plaintiff be required to answer under oath. Such interrogatories pertain to the payment by the Daubs to plaintiff of the monthly rental of $550 and the additional sum of $200 monthly on the purchase price of the furniture, fixtures and equipment.
In his responses to such interrogatories, plaintiff states that he has received monthly from the Daubs checks for $550, the last check being dated October 1, 1948, and that he has also received checks monthly from the Daubs in the amounts of $200. Responding further to the interrogatories, plaintiff states that he cashed each of the $550 rent checks received, but not until after the expiration of the month for which they were given, and that he has held the $200 checks received from May to October 1948.
No reply was filed to any of the answers.
Thereupon, W.J. Daub and Eleanor Daub filed a motion asking that the second cause of action in the petition be dismissed. The trial court sustained the motion, such action being recorded in a judgment entry reading as follows:
"This cause coming on for hearing on the motion of the defendants, W.J. Daub and Eleanor Daub, that the second cause of action be dismissed and that they be discharged as defendants and the same being presented to the court on the petition of plaintiff, the answer of the defendants, W.J. Daub and Eleanor Daub, and the answer to the interrogatories, which answer was made by the plaintiff in reply to interrogatories filed by the defendants, W.J. Daub and Eleanor Daub, and on consideration thereof, the court does hereby sustain said motion and orders the second cause of action dismissed from the petition and the defendants, W.J. Daub and Eleanor Daub, discharged as defendants. Exceptions noted to plaintiff."
After the overruling of his motion for a new trial, plaintiff took an appeal to the Court of Appeals, which affirmed the judgment below.
The cause is now here for decision on its merits pursuant to the allowance of a motion to certify the record.
Messrs. Sheppard Agnew and Messrs. Scott Scott, for appellant.
Mr. Frank C. Leyshon, Messrs. Willis Tedrick and Messrs. Graham, Graham, Hollingsworth Gottlieb, for appellees.
When plaintiff's motion to certify was allowed, this court entertained the view that probably an important principle of law was involved upon which the court should make pronouncement, to wit, whether the acceptance of the stipulated rental by a lessor from his lessee, after a claimed cause for the forfeiture of the lease had occurred, other than non-payment of rent, operated to waive the right of the lessor to continue to rely on such claimed ground of forfeiture to terminate the lease and regain possession of the premises. An examination of the record, however, shows that such matter need not be considered.
In his petition the plaintiff alleges without any amplification that "he has the title to and is entitled to the possession" of certain described real estate. The respective amended answers of W.J. Daub and Eleanor Daub, filed October 28, 1948, set up a subsisting written lease and agreement covering the hotel property and its contents. These answers allege further matters showing compliance with the terms thereof. Furthermore, plaintiff's responses to the interrogatories submitted by the Daubs were favorable to the latter.
No reply to the answers was forthcoming, and the Daubs by motion filed February 8, 1949, asked the court in effect for a decision on the pleadings as they existed. The court was then faced with a situation where the claims in the petition had been met by answers containing averments of a nature amounting to a full defense. A reply countering the allegations of the answers was consequently necessary to join the issues. According to the record, plaintiff neither filed a reply nor asked leave to do so, and we are of the opinion that the trial court could do nothing else than sustain the Daub's motion to dismiss.
Section 11326, General Code, contained in the chapter relating to pleadings, recites in part:
"When the answer contains new matter, the plaintiff may reply to it, denying generally or specifically each allegation controverted by him."
It is generally recognized that if matters which should be replied to are not met by reply, they are deemed to be admitted.
The judgment of the Court of Appeals affirming that of the Court of Common Pleas is, therefore, affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, STEWART and TAFT, JJ., concur.
FAUGHT, J., not participating.