101 P. 147 | Mont. | 1909
delivered the opinion of the court.
This is an appeal from an order of the district court of Flathead county setting aside a default judgment and permitting the defendant to answer. The plaintiff, who was sister to the deceased, Jacob Fine, filed a claim against his estate in the sum of $500, for work, labor and services performed by her during the years 1901 to 1906. The administrator rejected the claim, and this action resulted. •
Summons was personally served on May 29, 1908, default entered on June 19, and judgment entered June 20, 1908. On
In Mr. Foot’s affidavit is found the following: “That on the second day of June, 1908, said D. R. Peeler called upon affiant in his office, in the city of Kalispell, and delivered to him a copy of the complaint and summons in the above-entitled action; that said defendant inquired of affiant what he had to do with the papers served upon him, and affiant replied that he would have to answer and defend in said action. The merits of the case were but briefly discussed between affiant and defendant at that time, as both had been aware for some time that such an action was to be commenced, and the merits of the case had been thoroughly discussed on previous occasions, and all the facts known to said defendant were known to affiant at
An answer was tendered, admitting the death of Jacob Fine, the appointment and qualification of the defendant as administrator of his estate, and the publication of notice to creditors to present their claims within four months. ' As to the allegations that plaintiff performed work and services for deceased in his
But one question is argued in the briefs, to-wit, whether the court below abused its discretion in vacating the judgment; but on the argument two other contentions were advanced by counsel for the appellant.
(a) It was contended that the denial of knowledge or information sufficient to form a belief does not put in issue the allegations of the complaint to which it is directed. ■ The denial is in the words of the statute, with the exception that the word “thereof” is omitted. Section 6540, Revised Codes, provides: “The answer of the defendant must contain a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief, or a specific admission or denial of some of the allegations of the complaint, and also a general denial of all the allegations of the complaint not specifically admitted or denied in the answer.” We hold that under this statute a defendant may deny generally or specifieálly certain allegations of the complaint, and may, as to other allegations, deny any knowledge or information thereof sufficient to form a belief, and may admit other allegations, and may put still others, or all others, in issue by a general denial; and we think this construction has generally been adopted and acted upon by the profession. Under this rule of construction a general denial is proper in cases where certain allegations have already been generally or specifically denied, and in cases where the pleader has already denied any knowledge or information sufficient to form a belief as to the truth of particular allegations, and has specifically admitted others.
The appellant cites the case of Downing N. D. Land Co. v. Burns, 30 Colo. 283, 70 Pac. 413, in which the supreme court
(b) It is contended that the general denial in the answer is inconsistent with certain statements contained in the affidavit of merits, and is therefore not effective to put in issue the allegation that plaintiff’s claim was presented to the administrator and rejected. The statement in the affidavit is as folhnvs: “That after affiant was appointed administrator of said estate, there was delivered to him a pretended creditor’s claim in favor of said plaintiff against the estate of said deceased, but that said claim was never verified or sworn to, or made under oath
It would serve no useful purpose to analyze the allegations of the affidavits upon which the court below based its action, or to review the authorities on the subject. This court has had occasion to consider such orders so often that the principle of law involved is Well settled. (Loeb v. Schmith, 1 Mont. 87; Mantle v. Largey, 17 Mont. 479, 43 Pac. 633.) Every case must be decided upon its own facts. The respondent promptly-moved to vacate the judgment. We are of opinion that the district court did not abuse its discretion in granting'the defendant’s motion and vacating the judgment without imposing terms, and the order appealed from is therefore affirmed.
Affirmed.