Downing North Denver Land Co. v. Burns, 30 Colo. 283

30 Colo. 283 | Colo. | 1902

Mr. Justice Steele

delivered the opinion of the court.

The court did not err in. granting the motion to strike. The denial not being iñ the form prescribed by the statute, the motion to strike was properly granted. “The-statute appears to make a distinction between the, words ‘information’ and ‘knowledge, ’ and to say that one has not sufficient information upon which to base a belief, is not a compliance with the statute, which requires it to be stated that one has not knowledge or information upon which to base a belief.”' Jones v. McPhee, 9 Colo. 486; Haney v. People, 12 Colo. 345; Grand Valley Irrigation Co. v. Lesher, 28 Colo. 273.

“Advantage of this non-compliance with the statute may be taken by motion, or the allegation may be treated as not tendering an issue.” Grand Valley Irrigation Co. v. Lesher, supra.

The motion for judgment upon the pleadings was denied, not granted. In the order made on the day the motion was heard, it is recited that the motion is denied, although from an order made on the 2nd of April, 1900, it might be inferred that the motion for judgment upon the pleadings was granted; but the order also states that the court, having heard certain evidence produced and the argument of counsel, granted said motion. From the order itself it is evident that the recital that the motion for judgment upon the pleadings was granted is a mere clerical misprision, and that the order intended to be entered was that of default for want of an answer. Moreover, the decree entered the same day recites that the motion for judgment upon the pleadings was denied and that proof in support of the allegations of the complaint was taken, the defendant having failed to file an amended answer within the time fixed by the court. The record does not show that the defendant was denied the right to file an amended answer, and we are bound by the recital in the decree, nothing appearing to the contrary, that the defendant failed to file an amended answer within the time prescribed by the' court.

The defendant asserts that no proof of the execution of the mortgage was offered, and that for that reason the judgment should be reversed, and relies upon sections 62 and 168 of the code to support its contention. Neither section referred to is applicable to- the case here. Section 62 provides that ‘ ‘ When an action is brought upon a written instrument, and the complaint contains a copy of such instrument, or a copy is annexed thereto, the genuineness and due execution of such instrument is deemed admitted, unless the answer denying the same be verified,” but this section does not require a written instrument to be copied into the complaint or annexed thereto, nor does it forbid the rendering of a judgment by default; it does provide, however, that unless the answer is verified, the genuineness and due execution of written instruments set out in the complaint or annexed thereto are deemed admitted, and this whether the .complaint is verified or not. Section' 168 does not require proof to be taken in such cases. If the court can assess the damages and give judgment without the taking of proof, he may do so, and it is only in eases where he cannot render judgment without doing so that he is required to take proof. This section of the code was under consideration in the recent case of Ruth v. Smith, 29 Colo. 154.

The judgment is right, and it is affirmed.

Affirmed.