The defendant Wells interposed an answer, properly verified, which contained denials, on information and belief, of material allegations of the complaint. The-plaintiff moved, on the pleadings and affidavits in support of the truth of the allegations of the complaint which were denied, for an order striking out the answer as sham. The defendant Wells did not support the answer by any affidavits, other than the verification, which was in due form, and the court granted the motion. Erom the order which was. accordingly entered, this appeal was taken.
The question is presented of whether, where an answer putting in issue material allegations of the complaint is verified in the form prescribed by statute, it can be struck out,, under sec. 2682, B. S. '
This statute was borrowed from New York, where, in its original form, it has received judicial interpretation. The state of the law on the subject, as contained in the New York decisions, is referred to by counsel on both sides, and by the revisers, as conflicting. But if it is meant that the practice under the New York statute is unsettled; that there is any conflict in the decisions, except a conflict between some very early decisions and those which have controlled since the law in respect to the subject became settled, some forty years ago,— then we are unable to find wherein such conflict exists. The practice there seems to have been, for a long term of years, well settled on the subject, and the reasons therefor definitely appear. There has been no change in the New York statute. It is the same now as it was at the time of its adoption here, omitting the word “ irrelevant,” and reads as follows: “A sham answer or a sham defense may be stricken out by the court, upon motion, and upon such terms as the court deems just.” [Code, sec. 538.] It is there held that an answer containing denials of material allegations of the complaint, put in in the form prescribed by the Code, cannot be stricken out as sham. Wayland v.
The reasons given for the rule thus established apply here, unless it be otherwise by reason of changes in the statute which occurred at the time of the revision in 1878. Such reasons may be stated as follows: Before the Code, the remedy existed by striking out sham pleas, but such remedy was confined to such as set up new; matter. It was not •applicable to pleas which interposed the general issue as a defense. In case of the general issue, in an action at law, under the then existing practice, the party putting in the plea was entitled to a trial by jury. Not so, necessarily, in case of an answer containing an affirmative defense. Hence, a person could not then be deprived of the right of trial by jury, in case of the general issue, by a motion to strike out. Such was the condition at the time of the adoption of the constitution, which expressly provided (art. I, sec. 5), “ The right of trial by jury shall remain inviolate and shall extend to all cases at law,” etc. The effect of striking out an answer containing a general denial, whether upon information
Keeping the construction of the New York statute in mind, as a proper construction of the statute here until changed by the revision of 1878, — that is, that prior to the revision a denial interposed in the form permitted by the Code could not be. stricken out as sham, but that the answer setting up an affirmative defense might be so stricken out; that where an unverified answer was permitted, containing denials only, it could not be stricken out, though an anwer containing an affirmative defense might be stricken out, whether verified or not, if satisfactorily shown to be sham,— we examine the changes made by the revision, and readily see the purpose of such changes. They were evidently for the mere purpose of placing answers, whether by way of denial or affirmative defense, on the same basis, and, at the same time, not interfering with the constitutional right of trial by jury. To this end we find that words were added in the first part of the section as follows, “whether
“ A sham answer, reply or defense, whether by way of denial or avoidance, may be stricken out on motion and upon such terms as the court or presiding judge thereof may, in discretion, impose; but no defense shall be deemed sham, the truth of which shall be supported by the affidavit of a singlo witness, either by way of verification to the pleadings, or in opposing a motion to strike out.”
The words, “ by way of verification to the pleadings,” were intended to have the effect to take away the remedy of the motion to strike out a sham answer setting up an affirmative but false defense, which could formerly have been resorted to whether such answer was verified or not, while such words, and the words which precede, give the remedy in all cases where the answer, whether by way of denial or avoidance, is not verified. The words, “ by affidavit ... in opposing a motion to strike out,” were intended to enable the party to save the alleged sham pleading, if open to a motion to strike out by reason of not having been verified in the first instance, by supporting it on such motion by the affidavit of one witness competent to testify to the fact involved; that is to say, as the section now stands, a verified answer, whether by way of denial or avoidance, is not open to a motion to strike out as sham, while an unveri-
By the Cowrt.— The order appealed from is reversed, and the cause remanded for further proceedings according to law.