Gerrick v. Gorsuch
| Decision Date | 15 November 1961 |
| Docket Number | No. 36853,36853 |
| Citation | 172 Ohio St. 417,17 O.O.2d 353,178 N.E.2d 40 |
| Parties | , 17 O.O.2d 353 GERRICK, Appellant, v. GORSUCH, Treas., et al., Appellees. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. Where a defendant has specifically denied in one part of his answer a material fact which the plaintiff has alleged and must prove in order to establish his case and the defendant has also in another part of such answer made affirmative allegations which necessarily amount to an admission of such material fact, the defendant is bound by such judicial admission and the plaintiff need not offer any evidence tending to prove such fact.
2. A party who has alleged and has the burden of proving a material fact need not offer any evidence to prove that fact if it is judicially admitted by the pleadings of the adverse party. In such an instance, any evidence with respect to that fact can have no material effect.
3. Where all the facts essential to support a party's claim for relief are established by the judicial admissions of the opposite party in the pleadings and no affirmative defense to the relief sought is set forth in the pleadings, the party seeking such relief is entitled to a judgment reversing the judgment of a trial court denying such relief even though there may be no bill of exceptions setting forth the evidence before such trial court.
Plaintiff instituted this action in the Common Pleas Court of Fulton County to enjoin the treasurer of that county from collecting or attempting to collect an assessment against his property for sewer rental, which assessment was made under an ordinance of the village of Delta.
In his petition, plaintiff alleges (1) that the village passed a certain ordinance establishing rates to be charged for the services of the sewage system of the village and (2) that the property of plaintiff against which the foregoing assessment was levied is 'not served by a connection to the sewage treatment system' of the village.
No answer was filed by the county treasurer, who is one of two defendants.
The answer filed by the village of Delta, herein referred to as defendant, admits the first of those allegations and denies the second. The answer also contains five separate defenses.
Plaintiff's reply to defendant's answer denies 'all the affirmative matter thereof save and except such as are admissions of plaintiff's petition.'
The Common Pleas Court found for the plaintiff and granted an injunction.
On appeal to the Court of Appeals on questions of law and fact, the court permitted plaintiff to file an amendment to plaintiff's original petition, which amendment sets forth in full the terms of the foregoing ordinance. Defendant has filed no pleading denying that the terms of that ordinance are other than as set forth in that amendment and defendant conceded before this court that its terms are as set forth therein.
In its final order, the Court of Appeals stated that the case was 'tried * * * on the original pleadings, plaintiff's amended petition, the evidence, the briefs and oral arguments,' found 'that the evidence does not show a clear right to injunctive relief' and rendered judgment for defendant.
The cause is now before this court on appeal from that judgment.
Paul Merillat, Wauseon, Otto W. Hess and George A. Meekison, Napoleon, for appellant.
John H. Barber, Wausion, and Richard B. McQuade, Swanton, for appellees.
Section 6 of the ordinance involved in this case specifies that each charge levied pursuant to the ordinance 'is hereby made a lien upon the premises charged therewith' and that such charge if 'not paid within 90 days * * * shall be * * * collected as other municipal taxes are.'
There are many provisions of that ordinance which clearly indicate that no charge is to be made against any land which is not connected with the sewage system of Delta. There are no provisions therein indicating that any charge should be made against land not so connected.
Although the defendant's answer specifically denies the allegations in plaintiff's petition that the property of plaintiff involved in the instant case is not connected with the sewage system of Delta, there are several specific allegations in the separate defenses of that answer which necessarily amount to an admission that there is no such connection, and there are no allegations therein indicating there is such a connection except the allegations that the effluent from plaintiff's septic tank 'passes through his leaching bed, percolates through the ground * * * to the surface * * * and flows into Bad Creek; that said condition existed prior to the construction of the sewage disposal and treatment system and still exists' and that plaintiff at the time of enactment of the foregoing ordinance 'had a direct connection to and was served by the then existing sewerage system of * * * Delta by depositing his sewerage and the effluent therefrom into Bad Creek.'
There is nothing in the ordinance to indicate any intention to include Bad Creek as a part of the sewage system of Delta. On the contrary, the ordinance affirmatively indicates an intention that the sewage system was specifically designed 'to eliminate and prevent the pollution of streams' such as Bad Creek 'by the * * *...
To continue reading
Request your trial
-
Chilcutt v. Ford Motor Co.
...the pit would be slippery and that the pit's cover would be removed when it was being cleaned (Id., citing Gerrick v. Gorsuch, 172 Ohio St. 417, 178 N.E.2d 40 (1961)). Defendant contends that any attempt to argue that Chilcutt was unaware of the existence of the pit is disingenuous because ......
-
Heartland of Urbana OH, LLC v. McHugh Fuller Law Grp., PLLC
...proof of the fact.’ " Fullum v. Columbiana Cty. Coroner, 2014-Ohio-5512, 25 N.E.3d 463, ¶ 17 (7th Dist.), quoting Gerrick v. Gorsuch, 172 Ohio St. 417, 178 N.E.2d 40 (1961).{¶ 43} Thus, when McHugh submitted Fuller's affidavit, it was a judicial admission of the statements contained in the ......
-
Marden Rehab. Servs. Inc. v. East Liverpool Convalescent Ctr. Inc.
...not offer any evidence to prove that fact if it is judicially admitted by the pleadings of the adverse party.' Gerrick v. Gorsuch (1961), 172 Ohio St. 417, 178 N.E.2d 140. Intermediate appellate courts have acknowledged this principle. As the Ninth Appellate District has explained, 'It is t......
-
Fullum v. Columbiana Cnty. Coroner
...“an admission in a pleading dispenses with proof of the fact admitted and is equivalent to the proof of the fact.” Gerrick v. Gorsuch, 172 Ohio St. 417, 178 N.E.2d 40 (1961). “A judicial admission presented ‘by pleading and setting forth the fact * * * is binding as between parties to the s......