Cate v. Gilman

41 Iowa 530 | Iowa | 1875

Day, J. —

i. pleading: strike. I. We are of the 'opinion that the court, in refusing to strike out the matter assailed by plaintiff’s motion, committed no error prejudicial to him. The most that can be said of the facts stated in these paragraphs is that they aver matters which might be proved under the specific denials contained in the first paragraph, and that they are therefore unnecessary.

That this alone is .not a sufficient cause for striking out a clause in the answer, see Martin v. Swearengen, 17 Iowa, 346, cited and relied on by appellant. This is not a case where the same matter is repeated in several clauses or paragraphs. The first paragraph contains the denials of the material allegations of the petition. The second, an admission of the facts not controverted. The third and subsequent paragraphs contain a statement of the facts as the defendant avers them to exist, facts which, for the mo'st part, could be proved under the denials in the first pai’agraph, which are inconsistent with the allegations of the petition, and which, if proved, disprove the averments made by plaintiff.

Surely it is no prejudice to plaintiff that he is advised of the affirmative matter upon which defendant relies to disprove the allegations of the petition. The Code, section 2719, provides that: “The court may, on motion of any person aggrieved thereby, cause irrevelant or redundant matter to be stricken from any pleadings, at the cost of any party whose pleading contains them.” This section authorizes the motion to be made only by a person aggrieved.

“A party has a right to set forth his cause of action fully, and unless he burdens his pleading with matters that are totally irrevelant, impertinent, or imposes upon the defendant the necessity of specifically traversing a great number of facts, which are more properly evidence in support of a cause of action, than substantive averments to show that a cause of action exists, the defendant cannot be regarded as aggrieved thereby. * * * * Nor is a court to be taxed with the labor and trouble of minutely inspecting a pleading upon summary motion of this kind for the purpose of ascertaining whether averments are, or are not, revelant, unless in cases where it is absolutely incumbent upon the party to get rid of them, to enable him to frame a proper answer.” Maloney v. Davis, 15 Howard, 261, cited in notes to Section 2946 of the'Revision.

The plaintiff sustained no prejudice by the overruling of this motion.

II. The demurrer, it is claimed, should have been sustained, because what plaintiff is pleased to call the second count seeks to avoid the cause of action, and yet does not admit, either directly or by implication, that a cause of action ever existed.

Plaintiff is in error in placing this construction upon the answer.’ It does admit, directly, that defendant executed his note to plaintiff for $7,307.79. It then undertakes to show in what manner this sum has been discharged. It alleges that defendant transferred a note of the Central Railroad Company of Iowa, for $5,161.79, and that the balance, $1,816, was credited to defendant because of damages sustained on account of the defective construction of twenty flat cars, bought by plaintiff.

We are clear that the demurrer was properly overruled.

Affirmed;