62 Ind. App. 149 | Ind. Ct. App. | 1916
Appellant’s second and fourth assignments of error challenge the correctness of the court’s ruling in sustaining appellee’s motion to strike out the second paragraph of appellant’s answer, which was a general plea of payment. Appellee, for the purpose of. ascertaining whether said second paragraph of answer was false, under §391 Burns 1914, §382 R. S. 1881, submitted certain special written interrogatories which appellant was ordered to answer under oath. Said interrogatories and answers are as follows: “ 1. Did you execute the note described in plaintiff’s complaint? Answer, Yes. 2. Has the principal of said note or interest thereon, or any part of either principal or interest, been paid? Answer, Yes. 3. If No. 2 is answered in the affirmative, state
After appellant filed his answers to the interrogatories, appellee moved the court to strike out the second paragraph of answer for the reason that the answers to the special written interrogatories showed
Section 391 Burns 1914, supra, reads as follows: “An answer or other pleading shall be rejected as sham, either when it plainly appears upon the face thereof to be false in fact, and intended merely for delay, or when shown to be so by the answers of the party to special written interrogatories propounded to him to ascertain whether the pleading is false; and all surplusage, tautology, and irrelevant matter shall be set aside and struck out of any pleading, when pointed out by the party aggrieved.”
In the case of Atkinson v. Wabash R. Co. (1896), 143 Ind. 501, 509, 41 N. E. 947, the court said: “It is settled that where averments or matter in a pleading are in any way material, they ought not to be struck out on motion, and the recognized test of their materiality is to inquire whether they tend to constitute a cause of action or defense; if they do they are not irrelevant and ought not to be suppressed.”
In the case of Clark v. Jeffersonville, etc., R. Co. (1873), 44 Ind. 248, the court said: “When a demurrer is sustained to a pleading, the party has a right to amend, but when a pleading is stricken out, it cannot be amended, for it is out of the record.
Appellant contends that the answers to the interrogatories set forth sufficient facts and circumstances to show payment of the note sued on, but insists that even if they did not, the answers to the second and third interrogatories were in such conflict that the court should have left it to be determined on trial as to the truth or falsity of the question of payment, and cites and relies upon the ease of Pittsburgh, etc., R. Co. v. Fraze, supra. In that ease the court said (at page 576): “The court, we think, properly overruled the motion to reject the complaint. The statute requires the court not only to reject, as sham, an answer, but any other pleading ‘either when it plainly appears upon the face thereof to be false in fact, and intended merely for delay, or when shown to be so by answers of the party to special written interrogatories propounded to him to ascertain whether the pleading is false.’ * * * The appellant propounded interrogatories to appellee for that purpose, and they were answered by him. The object of such interrogatories, and the answers
As the judgment must be reversed for this error, the other questions raised by appellant in his brief need not be decided. Judgment reversed, with instructions to overrule appellee’s motion to strike out appellant’s second paragraph of answer, and for further proceedings consistent with this opinion.
Note. — Reported in 112 N. E. 847. See under (3) 30 Cyc 1260' (4) 31 Cye 628.