Ferguson, Jo M.

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University of Kentucky

Kentucky Law JournalVolume 26 | Issue 3 Article 101938Motion for Judgment on the Pleadings in KentuckyOther than for Judgment Notwithstanding theVerdictJo M. FergusonUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Civil Procedure Commons, and the State and Local Government Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationFerguson, Jo M. (1938) "Motion for Judgment on the Pleadings in Kentucky Other than for Judgment Notwithstanding the Verdict,"Kentucky Law Journal: Vol. 26 : Iss. 3 , Article 10.Available at: https://uknowledge.uky.edu/klj/vol26/iss3/10STUDENT NOTESof another, when in both forums equal laws are applicable and anequal administration of justice is obtained.?5The distinction In the Kentucky statutes relating to venue asagainst non-residents and residents is, undoubtedly, a legitimate one,which works no hardship upon the defendant. It is designed to securerights of the injured plaintiff which may otherwise be completelylost, and the statute should be declared constitutional.DOROTHY SALONi.MOTION FOR JUDGMENT ON THE PLEADINGS IN KENTUCKYOTHER THAN FOR JUDGMENT NOTWITHSTANDING THEVERDICT.The Kentucky Code provides: "judgment shall be given for theparty whom the pleadings entitle thereto, though there may havebeen a verdict against him".1 In view of this rather broad andgeneral statement, which would seem to include judgment on thepleadings in any situation In which the pleadings are insufficient, thepaucity of cases in Kentucky relating to motion for judgment on thepleadings is surprising. In other states this motion is not infrequentlyused In practice under the reformed codes of procedure.2 Neverthe-less, even in these states it Is not always looked upon with favor bythe courts."The highest court of Kentucky has indulged in a great deal ofloose language In discussing judgments on the pleadings, so that itIs difficult to ascertain by a reading of the cases whether the courtis speaking of judgment given on the pleadings on motion therefor,or peremptory Instructions, demurrers, or judgments notwithstandingthe verdict. However, the propriety of this motion for judgment onthe pleadings would seem to be established by a few cases which,upon careful perusal, appear to bear upon this point with somedegree of exactitude. The case of Mil er v. Hart4 squarely upholdsa judgment given on such a motion. In this case the defendant hadpromised, for a consideration, to let the plaintiff have her life estatein certain land, and relying on this promise the plaintiff had pur-chased defendant's grandchildren's reversionary interest in the land.The defendant then refused to abide by the agreement and the plain-tiff brought suit. The defendant answered, denying the allegationsof the petition, and afterwards entered a motion for judgment in herfavor on the pleadings. Her position was that the contract was within25 Iowa City Ry. Co. v. Iowa, 160 U. S. 389 (1895).1 Kentucky Civil Code (Carroll, 1932), section 386.2Finley v. Tucson, 7 Ariz. 108, 60 Pac. 872 (1900); Botto v.Vandament, 67 Cal. 322, 7 Pac. 753 (1885); Steinhauer v. Colmar, 11Colo. App. 494, 55 Pac. 291 (1898); Grimmett v. Grimmett, 80 Okla.176, 195 Pac. 133 (1921); Robinson v. Anderson, 88 Okla. 136, 212 Pac.121 (1922).8Good v. First National Bank of Roff, 88 Okla. 110, 211 Pac. 1051(1923); James River Nat. Bank v. Purchase, 9 N. D. 280, 83 N. W. 7(1900).4122 Ky. 494, 91 S. W. 698 (1906).KENTUCKY LAw JOURNALthe Statute of Frauds. The court sustained the motion and judgmentwas entered. Upon appeal by the plaintiff the decision of the lowercourt Was upheld. Unfortunately there was no discussion of the ques-tion of the motion for judgment on the pleadings beyond the merestatement that "as the judgment was entered on the pleadings theallegations of the petition must be taken as true upon the appeal."Evidently the court took for granted the validity of the motion. Thisdecision is doubtless correct, but the question hardly deserves suchcavalier treatment, inasmuch as it has never been discussed in anycase in a manner approaching completeness. Blythe v. Warner' isanother case in which the appellate court squarely upholds the judg-ment of a lower court given upon a motion for judgment on thepleadings, but it is no more satisfactory because the motion is referredto by the appellate court only as a demurrer, and no distinction isdrawn. Other cases are more vague as to the exact point decided,and are scarcely more informative, but indicate the court would notretreat from the position it took in the aforementioned cases favorableto the motion in question. More indicative of the court's position areseveral cases in which judgment was rendered on such motion in thelower court, but reversed on appeal.' These cases were reversed onlyon the ground that the motion was not proper in the particular situa-tions arising in the cases, and nothing whatever was said about anyimpropriety of the motion in general.In other jurisdictions the motion for judgment on the pleadings isof a double nature. It Is like a demurrer' because it attacks the suf-ficiency of the pleadings, admits the truth of all well pleaded facts inthe pleadings of the opposing party, and may be carried back andsustained against a prior pleading of the party making the motion,and because the court will consider the whole record and give judg-ment for the party who, on the whole, appears entitled to it. It is amotion because it is an application for an order for judgment. TheKentucky court has indicated that it looks upon the motion in muchthe same light, and has even expressly referred to it as a demurrer.'It has been said that "the motion, under the circumstances, partook ofthe nature of a demurrer, which, if it had been filed and overruled,5190 Ky. 104, 226 S. W. 669 (1920).O~ational Surety Co. v. Arteburn, 23 Ky. L. Rep. 281, 62 S. W.862 (1901); Hall v. Mineral Development Co., 31 Ky. L. Rep. 904, 104S. W. 341 (1907); Rittenhouse v. Swamp's Administrator, 128 S. W.(Ky., 1910) 299; First National Bank of Jackson v. Strong, 228 Ky.604, 15 S. W. (2d) 477 (1929).7 Clement v. Hughes, 13 Ky. L. Rep. 352, 17 S. W. 285 (1891);Gatliff v. Johnson, 140 Ky. 282, 130 S. W. 1100 (1910); Coffman v.Soat, 208 Ky. 591, 271 S. W. 668 (1925); Fergerson v. Rieke, 223 Ky.321, 2 S. W. (2d) 405 (1927).'People v. Johnson, 95 Cal. 471, 31 Pac. 611 (1892); Bergerow v.Parker, 4 Cal. App. 169, 87 Pac. 248 (1906); People v. Brown, 23Colo. 425, 48 Pac. 661 (1897); Floyd v. Johnson, 17 Mont. 469, 43 Pac.631 (1896); Burrall v. Moore, 5 Duer 654 (N. Y., 1856); Good v. FirstNational Bank of Ro, 88 Okla. 110, 211 Pac. 1051 (1923).' See Blythe v. Warner, 190 Ky. 104, 108 (1920), supra, n. 5.STUDENT NOTESwould not have prevented the appellees from presenting their proof."'A slight doubt is thrown upon this point by an earlier caseU in whichthe ruling of the lower court sustaining the motion on the ground thatthe answer presented no defense, was reversed with the statement that"If the answer did not constitute a defense, or was not sufficientlydefinite, these questions could have been raised by demurrer or byproper motion". This statement indicates hostility to the motion, andparticularly to its use as a substitute for a demurrer, but it is sub-mitted that this opinion is not controlling because the case was reallydecided on the ground that the answer had in fact presented a defense.The similarity of the motion for judgment on the pleadings and thedemurrer is further Indicated in those cases in which the lower courthas overruled a demurrer to a pleading, and then later granted judg-ment on the pleadings on the ground that the pleading demurred towas, after all, insufficient. It has been said that the court should notcreate in a party's mind the belief that his pleading is sufficient byoverruling a demurrer to it, and then, without affording him an oppor-tunity to amend, allow submission of the cause upon the motion ofthe adverse party, and render a final judgment against him becausethe pleading which the court has just said was sufficient, is in factdefective.1- But it appears that to save himself from a final judgmentin such case the party moved against must file a sufficient pleading,because the motion calls the sufficiency of the pleading directly intoquestion, and directs his attention to it.?In other jurisdictions the motion for judgment on the pleadingshas been found to be useful in situations where the complaint failsto state a cause of action or the counterclaim is clearly insufficient,14particularly where the pleading is not susceptible of amendment,mand where the answer or reply admits or leaves undenied all thematerial facts stated in the pleading of the opposing party and setsup no new matter which is a defense.16 The cases indicate that Ken-tueky would hold the same way, allowing the motion both where thecomplaint or counterclaim is insufficient,1t and where the answer orFerguson v. Rieke, 223 Ky. 321, 2 S. W. (2d) 405 (1927).n Harthill v. Cooke's Executor, 19 Ky. L. Rep. 1524, 43 S. W. 705(1897).12 Ashbrook v. Roberts, 6 Ky. L. Rep. 317 (1884); Bond v. Logan,Assignee, 22 Ky. L. Rep. 3 (1900)."National Surety Co. v. Arteburn, 23 Ky. Law Rep. 281 (1901).2,Powers v. Badger Lumber Co., 75 Kan. 687, 90 Pac. 254 (1907);Miller v. Waldoborough Packing Co., 88 Me. 605, 34 Atl. 527 (1896);Tooker v. Arnoux, 76 N. Y. 397 (1897); St. Louis and S. F. R. Co. v.Phillips, 17 Okla. 264, 87 Pac. 470 (1906).3 Good v. First National Bank of Roff, 88 Oka. 110, 211 Pac. 1051(1923)."Goldwater v. Bowmen, 7 Ariz. 200, 62 Pac. 691 (1900); Schoon-over v. Blrnbaum, 148 Cal. 548, 83 Pac. 999 (1906); State v. Votaw,13 Mont. 403, 34 Pac. 315 (1893); Cobb v. Win. Kenefick Co., 23 Okla.440, 100 Pac. 545 (1909).ITMiller v. Hart, 122 Ky. 494, 91 S. W. 698 (1906); Hall v. MineralDevelopment Co., 31 Ky. L. Rep. 904 (1907); Marler v. GreenburgIron Co., 216 Ky. 682 (1926).266 KENTUCKY LAW JOURNAJLreply admits or leaves undenied all material facts stated in the oppos-ing party's pleading.9 But the pleading must be clearly bad in orderto justify a judgment in favor of the other party." In case of ananswer in which the affirmative averments are nothing more thananother manner of making a denial, the court will refuse to sustaina motion for judgment.?The right to move for judgment is not waived merely by answer-ing the frivolous or defective pleading.= That this is true In Ken-tucky is shown by the case of Miller v. Hart, previously discussed. Thepropriety of the use of this motion at any time from the filing'of thepleadings until after the trial has started Is one of its chief advantages.The exact point at which the right to make this motion is waivedhas not been determined, and probably the trial court would be allowedto use some discretion in fixing it according to the peculiar circum-stances of the case, but it appears that in other jurisdictions if theparties introduce evidence as though an issue were properly raised,it is then too late to ask for a judgment for want of a reply.? Thereis practically nothing to indicate Kentucky's stand on this point. Inone case the trial court was held to have erred in granting a judg-ment on the pleadings on motion therefor, because the issue wasreally made up by the pleadings, the jury empaneled and sworn, andthe case stated. But the controlling factor was the fact that theissue had been, in fact, made up by the pleadings. Since Kentuckyhas not differed from other states upon the whole question of motionfor judgment on the pleadings, it is probable there would be no differ-ence upon this particular point, and therefore no waiver at least untilthe case had gone to trial and some evidence had been introduced.Where a party does fail to move for a judgment on the pleadings,an objection on the ground of absence of reply is waived where themotion for new trial is not put upon any grounds of defect in thepleadings. 4In conclusion it is submitted that the motion for judgment onthe pleadings is allowable in Kentucky; that it may be used to objectto the sufficiency or lack of a pleading of the opposing party; that itpartakes of the nature both of a demurrer and of a motion; and thatit may be used at least until the case has gone to trial and theparties have commenced introducing evidence.Jo McCOWN FEsOUSON2Hadden v. Mannin, 14 Ky. L. Rep. 652, 21 S. W. 38 (1893);Harris v. Doughitt, 141 Ky. 645, 133 S. W. 550 (1911); Morrison v.West Point, 201 Ky. 380, 256 S. W. 1102 (1923); Wright v. Wheat,224 Ky. 386, 6 S. W. (2d) 458 (1928)."Clement v. Hughes, 13 Ky. L. Rep. 352, 17 S. W. 285 (1891);Gatliff v. Johnson, 140 Ky. 282, 130 S. W. 1100 (1910).2Phillips v. Ratliff, 134 Ky. 704, 121 S. W. 460 (1909).= Soper v. St. Regis Paper Co., 78 X. Y. Supp. 782 (1902).= Covel v. Smith, 68 Miss. 296, 8 So. 850 (1891).ssHarthill v. Cooke's Executor, 19 Ky. L. Rep. 1524, 43 S. W. 705(1897).(9Louisville and Nashville Railroad Co. v. Copas, 95 Ky. 460, 26S. W. 179 (1894).

Motion for Judgment on the Pleadings in Kentucky Other than for Judgment Notwithstanding the Verdict

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Motion for Judgment on the Pleadings in Kentucky Other than for Judgment Notwithstanding the Verdict

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