87 N.W. 984 | N.D. | 1901
The record in this case discloses the following facts: The action is brought to recover of defendant the sum of $123.33, with interest, which amount the plaintiff alleges represents an overpayment by the plaintiff to the defendant on account of his salary as county treasurer of Kidder county. The complaint, after excluding its immaterial parts, is as follows: “(3) That the defendant was the duly elected, qualified, and acting county treasurer of and for the plaintiff, the said county of Kidder, at all times between the 7th 'day of January, A. D. 1895, and the 4th day 1 f January, A. D. 1897 inclusive of a part of each of said two days. (4) That the total amount of the collections made by the defendant as such county treasurer during the year A. D. 1895, exclusive of the amount received by him from his predecessor in said office, was thirty-three thousand six hundred and fifteen dollars ($33,-615.00), and did not exceed that amount; and that there was paid by the plaintiff to the defendant, for and as the defendant’s salary as such county treasurer for and during the year A. D. 1895, by the warrants of said plaintiff county upon its treasury duly ordered, drawn, and issued to said defendant and in his favor, ihe full sum of eleven hundred and sixty-six dollars and sixty-seven
The answer was successfully assailed in the trial court by two separate motions made in behalf of the plaintiff, which motions were, respectively, as follows: First, a motion was interposed to strike out of the answer certain averments contained in paragraph numbered 2 thereof, which are as follows: “But denies that in the year 1895 he was paid the sum of eleven hundred sixty-six and 67-100 dollars ($1,166.67), as alleged in paragraph 4 of said complaint, and alleges that the total amount paid to him out of said county treasury for the year 1895 for salary was eight hundred thirty-two and 81-100 dollars ($832.81), and denies that for the year 1896 and the first seven days of January, 1897, there was paid to him as salary the sum of eleven hundred dollars ($1,100) out of said county treasury, and alleges that for said term there was only paid to him the sum of five hundred eighty-eight and 33-100 dollars ($588.33).” And also to strike from the answer its fifth paragraph, and the whole thereof. These motions .were based upon the complaint and answer. The district court granted the motion, and by its order struck out of the answer each and all of the parts thereof as above indicated. The grounds and
The plaintiff’s other motion was leveled exclusively at the third paragraph of the answer. The plaintiff, in its notice of motion, asked for an order of the district court directing, in effect, that paragraph No. 3 of the answer be so amended as to make the same more definite and certain with respect to certain particulars which are enumerated in the moving papers; but such particulars, from our point of view, need not be further mentioned in this connection. The last-mentioned motion was likewise granted, and the trial court, by its order granting the same, directed that, after being amended in the third paragraph in respect to the particulars set out in the order, the-answer should be served upon the plaintiff’s counsel. The cwo motions were heard and decided at the same time, and the orders granting the same bear the same date. Defendant has appealed to this court from each 'and both of the orders, and, as they are closely relaied, they may conveniently be discussed and disposed of together.
Error is assigned in this court predicated upon granting said motions of the plaintiff, and making each of the orders appealed from. It is our judgment that the plaintiff’s assignments of error are entirely sound and must therefore be severally sustained. It is well established that averments contained in pleadings should be liberally construed with a view to expediting a speedy trial upon the facts and merits in furtherance of justice. From our standpoint the answer of the defendant as framed and served squarely and fully meets the issues of fact tendered by the complaint, and we confess that we are wholly unable to understand upon what principle of law or upon what rule of construction the trial court reaches the conclusion that the averments in paragraph 2 of the answer, which are directed to be stricken out, are obnoxious either as irrelevant or frivolous averments We cannot accept this conclusion of the trial court.The matters stricken from paragraph 2 of the answer are, in our opinion, responsive to specific statements of fact contained in the complaint. The complaint alleges, in substance, that the defendant received and was paid as salary the sum of $1,166.67 in die year 1895, and received and was paid as salary in 1896 the sum of $1,100; and further alleges that these amounts, respectively, fully paid all claims of the defendant for salary as county treasurer for each of said years. The averments ordered stricken out of paragraph 2 of the answer have reference to the alleged payments of salary in the years 1895 and 1896, and such averments, we think, most explicitly deny that such payments were made to the amount stated in the complaint, and allege in terms that only certain smaller amounts were paid defendant in said years as salary, and the answer states in terms the several amounts which defendant alleges were paid to him as salary in those years. The averments stricken out, in our opinion, sharply raise an issue of fact invited in the complaint, viz. whether the amount due defendant as
Turning now to a consideration of paragraph 5 of defendant’s answer, we are compelled to say with respect thereto that we cannot accept the conclusion of the trial court to the effect that this paragraph is either irrelevant or frivolous. Paragraph’ numbered 4 of the answer embodies a general denial of the allegations of the complaint except those qualified, explained or admitted by the answer. This general denial includes a denial of plaintiff’s statement, reiterated in the complaint, to the effect that no salary was due the defendant when he presented a claim to the county board on January 7, 1897. Paragraph 5 (that stricken out) clearly alleges that defendant had a claim on account of salary at said date, and that said claim, together with another claim of defendant, was presente.d to the county board, and that as a result of the presentation of such, claims an accounting was had, and a compromise was reached as between the defendant and the plaintiff which resulted in the allowance of the claims of the defendant to the amount sued for in this action. We think paragraph 5 should stand in' the answer as a basis upon which the defendant can offer evidence either to show that his claim for salary was just and legitimate, in whole or in part; or, on the other hand, to show that the amount he received on such settlement was due him in whole or in part on account of the other claim of defendant referred to and set out in paragraph s of the answer. The plaintiff has brought an action for money had and received, and lias alleged that the amount sued for was an overpayment to defendant on account of salary, and plaintiff alleges that no salary was due at the time the claim was allowed h}*- the commissioners, and paid out of the plaintiff’s treasury. The defendant is clearly entitled to have a jury pass upon the questions of fact raised by the complaint and answer, and is entitled to show that the claim allowed and paid to him was not an overpayment on account of salary, or that it was, on the other hand* a payment of some other lawful demand of his against the county. It should be kept in mind that in disposing of the plaintiff’s motion to eliminate portions of the defendant’s answer the trial court was not, and this court is not, called upon to carefully weigh and consider the answer with a view to determine its legal sufficiency as a pleading. Whether the answer does or does not embody a legal defense to the cause of action set out in the complaint was in no wise raised by the plaintiff’s motions to strike out parts of the answer as irrelevant and frivolous. The legal sufficiency of a pleading can be raised by a demurrer, but cannot be raised by such a motion as this. As we have already said, we deem the matter stricken from the answer to be entirely relevant and pertinent to the issues, and we think that the same is far from being frivolous in character. Authority in support of our views in this
There remains for consideration the order of the district court, above referred to, directing the answer of the defendant to be amended in such a manner as to make the third paragraph thereof more definite as regards certain particulars which are enumerated in the motion papers, but which it is not' deemed necessary to set out .at length in this opinion. The paragraph ordered to be made more ■definite has reference exclusively to the averments and matters of fact embodied in ‘the sixth paragraph of the complaint. Both of these paragraphs have been set out in full in this opinion. A comparison of the two will show that the third paragrph of the answer consists, first, of specific admissions of certain facts alleged in the sixth paragraph of the complaint, and then winds up with a denial of “each and every allegation in said paragraph six of said complaint, save and except as above specifically admitted.” The only construction which we have been able to place upon the language of the third paragraph of the answer is that said language, when con■sidered as a whole, consists of admissions and denials which are reasonably responsive and definite when considered with reference to •the matters of fact pleaded in the sixth paragraph of the complaint.
Our conclusion is that the orders appealed from were erroneously made and that the same should be reversed, and this court will so ■direct.