6 S.D. 382 | S.D. | 1894
This is an appeal from a judgment of the circuit court of Hughes county awarding a peremptory writ of mandamus. In her affidavit, respondent alleges the legal existence of the Rousseau school district; that Rousseau, Doyle, and Purington were the duly elected or appointed, qualified, and acting members of the school board of said district, and constituted such board, and that no other person acted or pretended to act thereon, or claimed a right to do so; that said board, by written contract, signed by said board and respondent employed respondent, who was then and there a legally qualified and licensed teacher, to teach the school of said district for two months, at $32.50 per month; that she taught said school in pursuance of said contract, and received therefor from said board two certain school orders, in the usual form, for $32.50 each, issued by said board signed by Rousseau as, and who was, chairman, and Doyle as, and who was, clerk, and directed to appellant, Purrington, as, and who was, treasurer, of said school district; that said warrants were severally presented for payment to said Purrington as treasurer, who re
Section 5521, Comp. Laws, provides that in a case like this the party against whom the writ is asked “may show cause by answer under oath, made in the same manner as an answer to a complaint in a civil action.” It would appear, then, that •whether or hot this judgment can stand must depend upon 'whether or not the affidavit contains sufficient allegations of facts nndenied by the answer, and so admitted by force of the statute, to entitle the respondent to judgment. The answer so far as it attempts a general denial is: “I deny each and all the allegations in the affidavit of the plaintiff * * * contained, except such as are hereinafter admitted or qualfied. ” The respondent contends that this form of denial is not authorized or recognized by our statute, and is no denial at all, but is in legal effect an admission of the allegations of the affidavit. To support this contention, a number of California cases are cited. These cases generally condemn what they style “conjunctive denials.” The meaning of this term when so used, seems tobe made plain by such cases as Doll v. Good, 38 Cal. 287, where the headnote says: ‘ ‘If several material facts are stated conjunctively in a verified complaint, an answer which undertakes to deny their averments as a whole, conjunctively stated, is evasive, and an admission of the allegations thus attempted to be denied.” There are other cases, like Hensley v. Tarter, 14 Cal. 508, which go further, and hold, as stated in the headnote -to that case:. “Where a complaint is verified, an answer denying generally and specifically each and every material allegation in the complaint, the same as if such allegation were herein recapitulated, and also denying each allegation in the same form, with certain qualifications and exceptions, does not raise ■an issue Upon any fact stated in the complaint.” Such rulings -seem to have been made in view of a provision of their practice act, which is essentially different from anything in our Code. Their -section 437, Code Civ. Proc., after providing, like ours,
This question has been the subject of much discussion, and" has apparently given the courts considerable trouble-. Wq think the general view has been that while such pleading ought not to be encouraged, and will often subject the pleader to a motion to make more definite and certain, still, where- it is.
We think in this case the answer must be treated as denyihg all the allegations of the complaint not thereinafter “admitted or qualified.” . So treating the answer, it follows that the allegation of the affidavit that plaintiff was a licensed and qualified teacher at the time of making the alleged contract stands denied by defendant’s answer, f.or such allegation is no