9 S.D. 184 | S.D. | 1896
This is an appeal from an order of the trial court striking out, as irrelevant and redundant, certain matter set up as a defense to the complaint, which states, among other things, that one Johann Schaack, the husband of defendant, on the 11th day of August, 1893, for a valuable consideration, be came indebted to plaintiff in the sum of $2,245, evidenced by certain promissory notes of said Schaack, upon which a judgment for $1,918.90 was duly obtained and docketed on the 7th day of November, 1894; that the judgment roll in said action was thereupon duly filed; and that $1,561.43 of said judgment remains unsatisfied, in full force, and the property of plaintiff. It further appears from the complaint that, when the indebtedness was incurred, said Johann Schaack was perfectly solvent and owned a large amount of valuable real and personal property.
If the alleged defenses, eliminated from the answer, are either irrelevant or redundant, the order appealed from must be affirmed; and, as appellant has entirely omitted from the record what he denominates as a first and second defense to respondent’s complaint, it 'cannot be presumed, in order to reverse the trial court, that the stricken portions of the answer, consisting of material admissions, evidential statements, and conclusions of law, are not, withall, superabundant, when considered with the averments of the first and second defenses set up in the answer, upon which the order appealed from is based, but which do not appear in the abstract before us.
Under the view we have taken, it will not be necessary to state the evidential and argumentative matter stricken from the answer, nor determine whether any portion thereof would be relevant as evidence upon the trial of any issue material to the case as made by the pleadings. For the purposes of this ap