delivered the opinion of the Court.
This сase presents the single question whether, under the civil practice act of Montana, judgment can be entered against a defendant, as upon default for want of issues to be tried, when there is on file in the cause an answer denying specifically all the allegations in the complaint, but in which the denial is bаsed upon information and belief only,, if it appears that the facts in controversy were not within the personal knowledge of the defendant, and that the information upon which he based his belief camе from his agents employed to transact the business out of which the litigation arose.
*587 Sects. 56. and 63 of the Practice Act are as follows: —
. “ Sect. 56. The answer of the defendant shall contain a specific denial to each allegation in the complаint intended to be controverted by the defendant. ... In denying any allegation in the -complaint, not presumptively within the knowledge of the defendant, it shall be sufficient to put such allegation in issue for the defendant tо state that, as to any such allegation,'he has not and cannot obtain sufficient knowledge or informаtion upon which to base a belief.”
“ Sect. 63. All complaints, answers, and replications shall be verifiеd as provided in this section. . . . The affidavit of verification shall state that the facts stated in the pleаding are true to the knowledge of the person making it, except as to those matters which are therein stated on his information and belief, and as to those matters, that he believes it to be true. Such verification shall be made by the party, or, if there are several parties united in interest or pleadings, by one at least of such parties acquainted with the facts, if such party is in the county and capable of making the affidavit.”
The verification in this case was in the proper form, and it further stated, “ that the defendants’ said business at Corinne, Utah, was performed by agents, from whom affiant’s information, upon which he based said belief, is derived.” These facts are not controverted. The business of the defendants, in respect to which they were sued, was that of common carriers, and must necessarily have been conducted to а considerable extent through agents. Under such circumstances, their knowledge as to many of their transactions would properly come from information. If the facts had been such as múst have been within, their рersonal knowledge, a denial upon information and belief might perhaps have, been proрerly treated as evasive; but here any presumption of personal knowledge has been ovеrcome by the statements in the verification, and unless parties under such circumstances are permitted to qualify their denials, they will be compelled to swear positively to that which they only believe to be true because they have information to that effect.
We do not think that parties, upon a- fair construction of the statute, are driven to that extremity. The denial, when made, must be specific; but it is nonе the less specific because *588 based on information and belief. Provision is made for an issue by a formal denial, where sufficient knowledge or information upon which to base a belief cannot be obtained. This implies that, if the necessary information can be obtained, a statement must be made predicated upon that; and, if it is to be made, we cannot see what harm can result from adding the grounds on whiсh it is based. It is the same for all the purposes of an issue whether the qualification is given or not, and the issue is the material thing to be attained.
But sect. 63 seems to us to be conclusive upon the propriety of the practice. There provision is made for one form of verification if the statement is upоn personal knowledge, and another if upon information and belief. Why this, if information and belief in a proper case were- not sufficient to justify an averment ? But unless the pleading shows that the statement is foundеd upon.information, &e., the form of the oath prescribed would be of ho avail, because that contemplates a positive verification in all cases where it does not appear in thе body of the pleading that a qualification is intended. In some States, the practice acts requirе a verification only to the effect that the party believes his statements tó be true. In such cases there is no necessity for qualifying the averments in the pleading, because the oath prescribed establishes all the limitation that is necessary. In Montana, however, the qualification must be made in the pleаding.
This view of the practice is sustained in
Hackett v. Richards,
3 E. D. Smith, 13;
Sayre
v.
Cushing,
We. think, therefore, that the denial upon information and belief was sufficient to presеnt an issue for trial, and that the court erred in deciding otherwise.
Cause remanded', with instructions to reverse thе judgment of the District Court and to direct that court to' proceed, in ac- . cor dance with this opinion, as law and justice may require.