18 Cal. 385 | Cal. | 1861
Field, C. J. concurring.
The question in this case turns upon the construction of that portion of the fiftieth section of the Practice Act relating to sham answers and defenses. The suit was brought upon a promissory note for $10,400, and the only defense set up in the answer was a plea of payment. The Court, on the motion of the plaintiff, based upon affidavits showing the falsity of this plea, and the bad faith of the defendants in pleading it, ordered the answer to be stricken out. The pleadings are not verified, and no issue was taken upon the matters set forth in the affidavits. It is claimed that the order striking out the answer was erroneous, but we think the defendants have no right to complain. The statute provides that sham answers and defenses may be stricken out on motion, and such was undoubtedly the character of the answer in this case. The affidavits show, and the defendants virtually admit, that it was not only untrue, but put in for the sole purpose of delay. On its face it constituted a perfect defense, but it was false in fact, and was interposed in bad faith. This is precisely the kind of an answer to which we under
Judgment affirmed.