1 Kan. 254 | Kan. | 1862
By the Court,
This cause comes up on error from the district court for Leavenworth county.
The only question is, whether the court erred in sustaining the demurrer to the answer.
The answer sets forth three, grounds of defense, and the demurrer is general, that the answer does not set forth any defense to the action.
If any of the grounds of defense are good, then the court erred in sustaining the demurrer. Plaintiff in error very candidly admits that the third clause of the answer constitutes no defense to the action. We think he is right, and also that the second clause is equally defective.
This leaves the first ground of defense set forth in the answer for consideration. It is as follows :
“ And now comes the said Alvah Munn, the above named defendant, by Locompte, Mathias & Burns, his attorneys, and for answer to the petition of the said plaintiff, filed in the above cause, says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says that he denies each and every allegation in plaintiff’s*258 petition alleged against him, and of this he puts himself upon the country.”
The only objection urged to this is the use of the langauge, “he says that he denies,” instead of “ he denies.”
It is insisted by defendant in error that the court must take into consideration that the code was framed with reference to the verification of pleadings, and that the phrase, “ says he denies,” would not have subjected the maker of the affidavit to answer to the penalties of perjury, were statements of the answer known, by affiant, to be false.
We admit the principle of construction, but deny the application.
To say that he denies, is to deny; and had it been written, “because he denies,” he would have denied by saying so on paper, and he has done no more than declare that he does what it would otherwise be obvious that he had done.
In Ohio it has been decided that an objection to a defective general denial must be made by motion, and cannot, in general, be taken by demurrer. (Sevan’s Pl. and Pr., 245, .253.)
We do not think it necessary to affirm that in this case. The second section of the code has laid down the principle# of. its interpretation.
After having given the code a name, the legislature hastened to declare that its provisions and all proceedings under it, shall be liberally construed with a view to promote its object, and assist the parties in obtaining justice.
The object of an answer is to apprise the plaintiff what defense is intended to be set up in bar of his claim. This is clearly and manifestly done in this case, and this is all the law requires.
It is urged by defendant in error that the several grounds of defense are inconsistent. If so, it is' not a defect that can be taken advantage of by demurrer. The usual and proper
■ The judgment is reversed, and the case is remanded to the district court of Leavenworth county, with directions to overrule the demurrer, and for further proceedings.
Judgment is rendered against defendant in error for costs in this court.
