166 P.2d 584 | Ariz. | 1946
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *90 Plaintiff-appellee filed suit for balance due from defendant-appellant Colboch on certain promissory notes, and to foreclose chattel mortgage securing the indebtedness. It was alleged that the original debt of $24,033 had been reduced by various payments, leaving a net balance due of $1,995.53, with interest thereon, and an additional sum of $100 for expenses incurred by plaintiff in search for the mortgaged property. The prayer was for judgment for $2,600, with interest, and that the mortgaged property be sold and the proceeds applied on the amount adjudged to be due. The rights of other defendants mentioned in the complaint need not be considered.
On February 17, 1944, the following demand for bill of particulars and itemized statement was made by defendant: "Comes now the defendants herein and hereby *91 make a demand for an itemized statement and bill of particulars of the account or items of indebtedness herein."
On the same date, the following unverified answer was filed: "Comes now Troy L. Colboch, and other defendants herein, and denies generally and specifically each and every allegation in said complaint contained."
On February 19 plaintiff served and filed motion for judgment on the pleadings, upon the ground that the answer was sham and frivolous and did not comply with the rules of procedure. No motion was made to strike the demand for bill of particulars or the answer, nor does any order appear showing any definite disposition of either the motion or the answer.
The cause was not set for trial, but the record discloses that at the calendar call on March 1st the court ordered that plaintiff take judgment as prayed for in its complaint, and that the mortgage be foreclosed. Following the entry of this order, the defendants not being present in court nor represented, evidence was taken to ascertain the balance due, and thereupon a written judgment was signed and filed. In this judgment the court finds a balance of $1,549.45 due on the original indebtedness, and other expenses and cost items, making in all the sum of $2,073.72.
On April 29 defendant gave notice of appeal to this court, and at the same time filed a motion to set aside the judgment. Later the same day he filed motion for leave to file amended answer, submitting therewith his proposed amended answer. On May 25 defendant filed another motion to set aside the judgment. These motions were denied by the court on the ground that it had no jurisdiction since the case was pending on appeal. A second notice of appeal was then given by defendant from the order refusing to set aside the judgment and allowing defendant to file his answer. Both these appeals, by stipulation, are consolidated in this proceeding.
It is settled that where notice of appeal is given, this perfects the appeal and the trial court has no further jurisdiction, Lount v. Strouss, Ariz.,
By appropriate assignment of error, defendant has presented for determination the validity of the judgment entered under the circumstances mentioned. Whether the judgment is sustainable requires consideration of the pertinent rules of civil procedure and the law relating to verification of answers in certain proceedings. *92
Under the rules of procedure, a defendant has the right to plead by general denial if he intends in good faith to controvert all averments of the preceding pleading. Rule 8(b), section
Section
The Hall case was decided before the adoption of the Rules of Civil Procedure for the Superior Courts. Under the present rules, it would seem that a motion to strike is confined to the following purposes: The striking of "any redundant, immaterial, impertinent, or scandalous matter * * * from any pleading", Rule 12 (f), section 21-434; or, where the pleading is "sham and false" as provided in Rule 11, section
Plaintiff's motion for judgment on the pleadings was predicated on the *93
ground that the answer was sham and frivolous, and did not comply with the rules of procedure. We think these grounds were sufficient to authorize the court to treat the motion both as one to strike and for judgment. A sham pleading is defined as one good in form but false in fact. Bollen v. Woodhams,
Defendant takes the position here, and argues with considerable force, that the unverified general denial raised an issue as to the alleged balance due, and that, therefore, the court erred in sustaining the motion. It seems obvious to us that this position is not tenable. A general denial is good only if the pleader intends to controvert all averments of the preceding pleading. Rule 8(b), section
Rule 12(e), section 21-433, provides that before responding to a pleading "a party may move for a more definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading or to prepare for trial. The motion shall point out the defects complained *94
of and the details desired." The provisions of Rule 12(a), section
The record discloses that judgment was entered on the same day that adverse action on the application for the bill was had, if at all, thus depriving defendant of his ten-day period within which to file a responsive pleading. The judgment was entered prematurely. It is only after the pleadings are closed that a party may move for judgment on the pleadings. Rule 12(c), section 21-431.
Causes should be determined on their merits rather than upon matters of procedure. Mendez v. Moya,
We are not impressed with plaintiff's claim that the motion for bill of particulars wholly failed to comply with the law and, therefore, should not be considered. It is in no sense a model motion. It could have been properly denied. Notwithstanding this, it was in form an application for a bill of particulars, and specified fairly the details required. The plaintiff had alleged an original debt upon which payments and credits had been allowed, without specifying the items. The claim was for a net balance. Obviously, the defendant by the application for the bill wanted to secure from plaintiff a statement of the various items, credits and payments from which the net balance claimed *95 could be ascertained. The application was sufficient to at least require the court to enter an order of denial.
The judgment is reversed and the cause remanded with directions to allow defendant ten days after the filing of the mandate of this court with the clerk of the Superior Court within which to file answer.
STANFORD, C.J., and LaPRADE, J., concurring.