57 Cal. 285 | Cal. | 1881
The plaintiffs brought an action in the late District Court of the Nineteenth Judicial District, on a promissory note given by the defendant to one James Morgan. The complaint avers, that the note was indorsed by Morgan to the plaintiffs before maturity, that the payment thereof has been duly demanded, and that the whole amount of principal and interest remains due and unpaid. The defendant filed an answer in which he “ denies that the promissory note mentioned in the complaint was made for value received; denies that he, defendant, ever received any consideration therefor from James Morgan, the payee therein named, or from any other person or persons whomsoever, either at the time of making said note, or at any other time before or since; that he was not indebted to said
The foregoing are all the denials contained in the answer which we are called upon to notice in this opinion. The complaint and answer were verified in due form.
The answer was filed on the 6th day of February, 1879, and on the 8th day of the same month a notice was given by the attorney for the plaintiffs to the attorney for defendant, that he would move the Court to strike out the answer, “ upon the ground that it is sham and irrelevant,” and that he would also at the same time ask for judgment against the defendant for the amount claimed in the complaint. In support of the motion, plaintiffs introduced several affidavits showing that the noto was given for a full consideration, and showing also that the plaintiffs were holders for value. In answer to these affidavits, two affidavits were filed on behalf of the defendant. They were both made by him; the first being to the effect that he had fully and fairly stated the case and his defense to his attorney (naming him), and was advised and believed that he had a full, complete, and meritorious defense to the action; and the second stating that “ the verified answer interposed by him was made and filed in good faith on his part, and that he expected to prove the averments therein contained, and all of them, upon the trial of the cause, to the satisfaction of the Court and jury.” On the 19th day of March, 1879, it was ordered by the Court, that the answer be stricken out as sham, and that judgment be entered for the plaintiffs, and against the defendant, for $10,000, with interest and costs, as prayed for in the complaint. From that judgment this appeal is taken.
By § 453 of the Code of Civil Procedure, it is provided that “ sham and irrelevant answers, and irrelevant and redundant matter inserted in a pleading, may be stricken out upon such terms as the Court may, in its discretion, impose.” “ A sham answer is one good in form, but false in fact, and not pleaded in good faith.” (Piercy v. Sabin, 10 Cal. 22.) Mr. Chittv, in
The precise questions involved in this case have never been passed upon by the Supreme Court of this State.
It was well settled, that the pica called the general issue could not be stricken out at common law as sham, nor can it be under the Code. (Fellows v. Muller, 38 N. Y. S. C. 139 ; Wayland v. Tysen, 45 id. 281; Thompson v. Erie R. R. Co. id. 468; Fay v. Cobb, 51 Cal. 315.) “ The defendant has the right to put the plaintiff to the proof of his demand, and to urge that he establish it by evidence admissible for that purpose. An ex parte affidavit is not such evidence.” (Fay v. Cobb, 51 Cal. 315 ; Wayland v. Tysen, 45 N. Y. 282.)
One of the averments in the answer which was stricken out in this case was, that the note was given without consideration; and such a defense could be proved under the general issue at common law. (1 Chitty on Pleading, 477.)
There is, however, another question, and a more important one, involved in this case; and that is, Can a verified answer, such as was interposed by the defendant, be stricken out on motion ? If it contained but a general denial of the facts essential to the maintenance of the plaintiffs’ action, it could not be stricken out at common law. The authorities referred to above establish that principle. The Code provides, however, that, when the complaint is verified, the answer shall also be verified, and a specific denial of- every controverted fact is required. A general denial of the averments of the complaint was therefore inadmissible in this case.
In support of the action of the Court below, in striking out defendant’s answer, the strongest case referred to by the learned counsel for the respondents is that of The People v. McCumber,
But the more recent case of Wayland v. Tysen, 45 N. Y. 281, lays down a different rule. In that case, Grover, J., delivering the opinion of the Court of Ajipeals (which opinion was concurred in by all the judges), says: “ Under the common-law system, the general issue could not be struck out as sham, although shown by affidavits to be false.” (Broome Co. Bank v. Lewis, 18 Wend. 565.) This was not upon the ground that a false plea was not sham. That was always so regarded; but upon the ground that a party making a demand against another through legal proceedings was required to show his right by common-law evidence, and that ex parte affidavits were not such evidence. The Court, under that system, exercised the power of striking out pleas setting up affirmative defenses as sham, when shown by affidavits to be false, but not when the party verified such plea by affidavit. It has been claimed, and the claim somewhat sanctioned by the Supreme Court, that these rules have been changed by § 152 of the Code. (It is now
“ The action was upon a promissory note alleged to have been transferred to plaintiff for value before maturity. Defendants denied the transfer, upon information and belief, and alleged, if transferred, it was after maturity; and set up, as recoupment, damages for breach of contract upon which the note was given. The motion to strike out the answer was made upon affidavits showing the transfer of the note before maturity, for a valuable consideration, without notice. The order appealed from was reversed, upon the authority of Wayland v. Tysen, 45 N. Y. 281, and Thompson v. Erie R. R. Co. id. 468.”
The latest New York case we have been able to find on this question is that of Roby et al. v. Halleck, 55 How. Pr. 412, decided August Term, 1878. This was an action on a promissory note, the plaintiff suing as indorsee. The answer contained a denial of any knowledge or information sufficient to form a belief whether the note stated in the complaint was ever transferred or indorsed to plaintiffs, as alleged in said complaint, or otherwise. The Court held, that it had no power to strike out the answer as sham.
In the case now under consideration, the answer denied that there was any consideration for the note; and also denied, on information and belief, that the payee indorsed the same to the plaintiffs or any other person, for value; and also denied that plaintiffs ever paid anything for the note. Mr. Wait, in his work on Practice (vol. 2, p. 492), says: “ It may well be doubted, if, under the construction given to § 152 of the Code by the Court of Appeals, the Court has the power to strike out as sham any pleading other than an unverified affirmative defense.” In the case of Gostorfs v. Taaffe et al. 18 Cal. 385, the Court says: “ If the defense be bona fide, the affidavit of the defendant to that effect will be a sufficient answer to any attempt to strike it out.”
In our opinion, the remarks of the Court of Appeals of Now York, in the casé of Wayland v. Tysen, are eminently sound and conclusive. The plaintiff moves the Court to strike out the
We are of the opinion the Court below erred in striking out as sham the verified answer of the defendant, and the judgment must therefore be reversed. So ordered.
Myrick, J., and Sharpstein, J., concurred.