Hill v. Cole

GIBSON, V.C.J.

(dissenting). I am of the opinion that if the pleadings are sufficient -to raise an issue of fact as to-former adjudication, the cause may not be disposed of on objection to the introduction of any evidence. If issues of fact have been joined, the defense of res judicata cannot be heard on motion to dismiss. Objection to the introduction of evidence would be governed by the same rule.

In Wade v. Hope & Killingsworth, 89 Okla. 64, 213 P. 549, when considering the propriety of hearing the defense of res judicata on motion to dismiss, the court said:

“In regard to the appeal in the…