Action upon promissory note. The answer admitted the allegations of the complaint, and alleged new matter in the nature of a counter^ claim, which plaintiff moved to strike out, on the ground that it was ’sham and frivolous, and for judgment as for want of an answer. The motion was granted, and this appeal presents -the single question, whether an answer which consists of a counterclaim may be stricken out as sham and frivolous. We have no hesitation in saying that it may. Section 5236, G. S. 1894, provides that the answer may contain new matter constituting a counterclaim, and section 5240 reads:
Sham, irrelevant, or frivolous answers, defenses or replies, and frivolous demurrers, may be stricken out, or judgment rendered notwithstanding the same, on motion as for want of an answer.
A counterclaim, therefore, although consisting of new matter, may constitute an answer, within the meaning of these sections, and consequently may be stricken out on motion as sham or frivolous..
Judgment affirmed.