Buller v. Sidell

43 F. 116 | U.S. Circuit Court for the District of Southern New York | 1890

Lacombe, J.,

(after stating the facts as above.) The first paragraph of the answer denies knowledge or information sufficient to form a belief as to the recovery of the judgment sued upon. Inasmuch as it appears by the defendants’ own papers that they entered a general appearance by attorney in the Kansas action, this paragraph must be stricken out as sham. Roblin v. Long, 60 How. Pr. 200; Beebe v. Marvin, 17 Abb. Pr. 194. The second paragraph of the answer merely denies indebtedness. It should also be stricken out. Mills v. Duryee, 7 Cranch, 481. Inasmuch as it is not disputed that the Kansas court had jurisdiction, and that the defendants had notice of the proceedings therein, the defense set up in the third paragraph of the answer is plainly an equitable one. Christmas v. Russell, 5 Wall. 290; Allison v. Chapman, 19 Fed. Rep. 488. Equitable defenses cannot, however, be set up in actions at law in the federal courts. Bennett v. Butterworth, 11 How. 669; Montejo v. Owen, 14 Blatchf. 324; Parsons v. Denis, 7 Fed. Rep. 317; Doe v. Roe, 31 Fed. Rep. 97. This paragraph must therefore be stricken out.