Rhodes v. Hutchins

10 Colo. 258 | Colo. | 1887

Stallcup, C.

Section 65 of our code provides for striking sham answers. The action of the court, on motion of plaintiff to strike the answer and give judgment on the pleadings, was in effect to adjudge that the same was a sham answer, and that, upon the pleadings, the plaintiff was entitled to judgment. ' It seems to be conceded in the argument of counsel here that the answer was a sham answer, but it is contended on the part of appellants that the complaint was insufficient to support the judgment, and for that reason the judgment should be reversed. The omission of Lester in the action was warranted by section 14 of the code. The court was not asked to require the complaint reformed or improved in its structure. The assignment of its insufficiency after judgment can only be sustained on the ground that the facts contained therein, even if well stated, constitute no cause of action. Sec. 60, Code; Bethel v. Woodworth, 11 Ohio St. 396.

In effect, it is stated in plaintiff’s complaint that defendants made and delivered [to plaintiff their certain written promise, by the terms of which there is due and owing to him from defendants the sum of $1,050, and interest thereon from the 3d day of December, 1881, and that such sum remains unpaid. A copy of said promise or promissory note is set out in the complaint, by which it is shown that defendants did so promise, and that the said sum is accordingly due to plaintiff thereon from the said defendants; and it is stated to be a true copy; and then it is stated that no part of the same has been paid. So, under the liberal construction required by our code, we feel bound to hold that the complaint does contain facts sufficient to sustain the judgment. Secs. 80, 81, Code.

The judgment should be affirmed.

We concur: Maoon, O.; Rising, 0.

Per Curiam.

For the reasons assigned in the foregoing opinion the judgment below is affirmed.

Affirmed.