17 Mont. 469 | Mont. | 1896
If there is an issue framed by the pleadings, judgment on the pleadings is error. (Horsky v. Moran, 13 Mont. 267; Bach, Cory & Co. v. Montana L. & P. Co., 15 Mont. 345.) The complaint in this case set up a cause of action. This is conceded. Therefore judgment could not be rendered upon the pleadings for want of sufficient allegations in the complaint. It is conceded that the answer set up a defense. But, even if that were true, judgment on the pleadings could not be rendered, because the defense set up in the answer would frame an issue. That issue must, therefore, be tried. (See cases last cited.) This judgment cannot be sustained at all upon the ordinary principles governing the rendition of judgment on the pleadings. But respondent claims that it must be sustained, for the following reason: Plaintiff had also moved for judgment on the pleadings, and he thereby confessed the truth of the allegations of the answer, and claimed, as he would upon a demurrer, that, although the answer was true, yet the facts there stated did not constitute a defense; and that he, the plaintiff, having thus confessed the truth of the answer, and the court holding that the facts of the answer were a sufficient defense, therefore the defendant’s motion for judgment on the pleadings must be sustained. This was the view of the district court.
The situation is somewhat curious. The defendant’s motion in itself was not good at all, for the reason that the complaint did set up a cause of action, which cause of action could not be swept away simply by a defense being pleaded in the answer, the parties not having yet reached a point where the facts alleged in the pleadings could be proved by testimony. Therefore defendant’s motion was wholly unsustainable. And it
„ Without passing upon this rather unusual condition of affairs, we will leave thffi branch of the case, having stated it for the purpose of introducing and explaining the following conditions: A motion for a judgment on the pleadings bears a very close resemblance to a demurrer (Power v. Gum, 6 Mont. 5), and in some respects is simply a demurrer. The plaintiff’s motion for a judgment in this case asked for judgment because the answer did not set up facts constituting a defense. The court denied the motion. The rule of the court was, as shown in the statement above, that when a demurrer was overruled, the party, as a matter of right, had 24 hours in which to answer or reply, or make so.me other motion. The plaintiff replied within 24 hours. We think that the plaintiff’s right to reply, and his attempt to do so, were wholly within the spirit and intent of the rule of the court. In any event, we are of opinion that the conditions were sufficiently within the spirit and intent of the rule to make it appear that it was not a wise exercise of discretion by the lower court to render final judgment against the plaintiff without allowing the issues to be made up by the filing of the replication; for, by its action, the court wholly deprived the plaintiff of a trial upon the merits, and so deprived him by what seems to us a strained and unnatural application of the court’s rule.
This judgment is therefore reversed, and the case is remanded to the district court, with instructions that the replication be allowed to remain as filed.
Reversed'.