2 Mont. 35 | Mont. | 1874
Lead Opinion
The most important question presented in this action is the right, of. a defendant to deny the allegations of the complaint upon information and belief.
The Practice Act of this Territory, approved December 23, 1867, -in section 46, provided that the answer of the defendant should contain: “First, if the complaint be verified, a specific denial to each allegation to the complaint controverted by the defendant, or a denial thereof, according to his information and belief.” Under this provision of the statute, undoubtedly, the defendant could deny upon information and belief. This section of the Code, however, was amended in 1872, and it was provided that “ the answer of the defendant shall contain a specific denial to each allegation in the complaint intended to be controverted by the defendant.”
Another mode of presenting an issue was also provided for, that was not in the former Practice Act, namely: “In denying any allegation in the complaint, not presumptively within the knowledge of the defendant, it shall be sufficient to put such allegation in issue for the defendant to state that, as to any such allegation, he has not and cannot obtain sufficient knowledge or information upon which to base a belief.” Civ. Pr. Act, § 56.
In this amended Code, it will be observed that the clause allowing a denial upon information and belief was left out. We must presume that this was done intentionally. Can the term, “ specific denial,” be made to signify both a positive or absolute, denial, and a denial upon information and belief ?
It is certain that the legislative assembly of 1867 did not consider that it could. If they had so understood that term, it is not reasonable to suppose that they would have provided for both a specific denial and a denial upon information and belief.
If they had held that the term “specific denial” embraced both an absolute denial and a denial upon information and belief, then the clause they put into the statute, “ a denial according to information and belief,” was useless, mere verbiage. The more reasonable view is, that they used the term “ specific denial ” as
In 1852, the New York legislature amended this statute so that it read as follows :
“ A general or specific denial of each material allegation of tbe complaint controverted by tbe defendant.”
It will be seen that this amendment left out tbe clause “ a denial according to knowledge, information, or belief.”
In tbe case of Thorn v. N. Y. C. Mills, 10 How. Pr. 19, Mr. Justice Bacon says, upon this subject: “ I regard tbe construction put upon this section (149) by Judge Daly, in Hacket v. Prichard, 11 Leg. Obs. 315, as tbe true exposition of tbe clause in question. Tbe clause allowing a denial according to a defendant’s knowledge, information or belief, has been stricken out, and I suppose tbe construction of tbe amended section now is, that tbe defendant must deny absolutely, without any qualification whatever, unless be can deny that be has either knowledge or information sufficient to form a belief. "Where be cannot do this, as where be has knowledge or information, and has formed a belief, be must deny positively, for be cannot traverse tbe allegation now, except in one of two modes. Tbe intention of tbe legislature appears to have been to allow tbe defendant less latitude in traversing tbe complaint than before, for they have designedly omitted tbe provision allowing a denial upon knowledge, information or belief.”
In the case of Blake v. Eldred, 18 How. Pr. 240, Mr. Justice
To tbe same point, see Hackett v. Richards, 3 E. D. Smith, 13; Therasson v. McSpeddon, 2 Hilt. 1; 2 Whittaker’s Pr. 80.
Tbe case of Edwards v. Lent, 8 How. Pr. 28, is an authority apparently in conflict with those above. On an examination of tbe date of tbe rendition of tbe opinion, I am inclined to think it must have been given before tbe amendment to tbe New York Code in 1852. Tbe opinion was delivered in 1852, tbe same year of tbe amendment, and no reference is made to it.
Tbe fact that tbe verification prescribed in tbe Code provides that tbe affidavit shall state “ that tbe facts stated in tbe pleading are true to tbe knowledge of tbe person making it, except as to those matters which are therein stated on bis information and belief, and as to those matters, that be believes it to be true,” is urged by tbe appellants with considerable force, they claiming that it was contemplated, from tbe verification prescribed, that every pleading in a case might have allegations upon information and belief Tbe answer to tbis is, that tbe verification prescribed by tbe New York Code contains this provision, and yet tbe courts in that State have rendered tbe decisions above referred to. Tbe courts of that State did not consider tbe provisions in tbe section upon verification sufficient to override tbe positive requirements of tbe form of a denial prescribed by section 149 of their Code, and I do not think it sufficient to override tbe requirements of our Code.
It is probable that tbe construction I have given to section 56 of our Practice Act works a considerable hardship upon tbe defendants in tbis case, and may work a hardship in many other cases unless tbe section should be amended by our legislative assembly.
There is one other denial of the defendants to be considered, namely: “ And the said defendants have not, and cannot obtain sufficient information upon which to base a belief, as to whether said goods, or any thereof, are or were lost to the plaintiffs, and therefore deny the same.”
Taking all of the facts into consideration, presented in the record, and the court may have well considered this denial as sham. The plaintiffs allege that the goods were delivered to the defendants as common carriers. The defendants should know whether or not they delivered said goods to the plaintiff. The only thing that is set forth, that would in any way excuse them from not having this knowledge, is the statement in the verification that the business was transacted by agents. Still the court below may have held that they ought to know enough of the conduct of their agents to have some belief or information as to their doings, and that parties could not shut their ears and refuse to receive information upon a subject of such interest to them and the person who intrusted them with his property. The question of whether a party has presumptive knowledge of a fact stated in his pleadings, must, in some measure, be left to the judgment of the court below. Considering that I have held that the other allegations of the complaint were' not properly put in issue, I cannot see any error in the court below in holding that if all the other allegations of the complaint were admitted, the defendants must have presumptively had knowledge as to whether the plaintiff-had lost any of the goods specified.
It is contended that, if all of these denials were sham, still the plaintiff had no.right to judgment without first striking out the answer. In effect, that is the plaintiff’s motion. The first ground for the motion is, “ that the amended answer filed herein is sham and irrelevant.” In New York, the practice of moving for a judgment on a sham or immaterial answer has been sustained, and this court has held that a party might move to strike out an answer that raised no issue, and then for judgment, or for
Suppose that the form of raising an issue prescribed in the Code of alleging that the defendant has not and cannot obtain information sufficient to form a belief was stricken out, could it be contended that an issue could still be presented in that manner ? I think not. The point that the record does not show that the court below took proof upon the amount for which he rendered judgment, is now for the first time raised by the dissenting opinion herein. All presumptions are in favor of the proceedings of the court below, and this court will not consider errors of this character, concerning which the defendants took no exceptions in’ the court below, and for which no error is assigned in the record presented to this court, or pointed out in the briefs and arguments of counsel.
For these reasons, the judgment of the court below is affirmed, with costs.
Judgment affirmed.
Dissenting Opinion
dissenting. I cannot concur in the opinion just announced. My reasons therefor are that, in my judgment, it misconceives the true office of an answer under our Code. It applies rules and principles which had their origin under other Codes, entirely dissimilar from ours, and which have been so often altered, amended and repealed as to be of little authority and less aid in the construction of our statute, now under consideration. And it also misconceives the authority of the court to render judgment as by default, pending an answer duly on file, and un disposed of by motion or demurrer.
It is undoubtedly true that the strictness of common-law rules of pleading would condemn the answer in question upon demurrer. But our Code, like all others, has abolished the formal rules of pleadings, and established in their stead others essen
It is said that section 56, under which this answer is drawn, does not expressly provide that it shall or may be drawn upon information and belief. While this is true, it is also true that it does not, expressly or by implication, prohibit an answer being so drawn; and when we turn to section 63 we find a very strong implication in favor of such an answer; in fact, the form therein provided for an affidavit of verification to an answer, expressly provides, “ That when the matters are stated in an answer upon information and belief,” that then the affidavit shall so state. But it is said that this applies solely to that second mode provided for in section 56, whereby (not to deny, but) to form an issue, viz.: “ That, in denying any allegation in the complaint, not presumptively within the knowledge of the defendant, it shall be sufficient to put such allegation in issue, for the defendant to state that he has not, and cannot obtain sufficient knowledge or information upon which to base a belief.”
I maintain that this does not annihilate that strong presumption favoring a denial upon information, as derived from section 63 of our Code. In fact, the very provision there made for the verification of an answer is utterly inapplicable to an answer, other than one of personal knowledge or of information. Would it not be quite inconsistent for a defendant to say by his answer that he has no information and no belief as to the subject-matter of a complaint, and then add thereto an affidavit, swearing that he believes the same to be true; that is, that he believes to be true that of which he has no knowledge, no information, no belief, and no means of obtaining the same %
Counsel are mistaken in the correct rendition of our statute, when they say, in their brief, that, “ In denying an allegation not presumptively within the knowledge of the defendant, Tie may deny, on information and belief, if he has not, and cannot obtain sufficient information1 upon which to base a belief.” Our statute
It is insisted that a proper construction of the language used in the answer under consideration, makes the pleader attempt to set up the facts of his information and belief as a defense to the action. This, I think, is straining construction beyond liberality ; for it seems to me quite apparent, and that, too, without much liberality, that it is not his belief, but the facts believed to exist, upon which he relies for his defense.
And it is further urged that the defendant has not specifically denied the allegations he seeks to controvert; not that he has not specifically pointed out and stated wherein and what he controverts, but that he has so done upon information and belief, and, therefore, it is not a specific denial.
I maintain, that all that is required under our Code, in order to specifically controvert the allegations of a complaint, is for the answer to point out, state and define, wherein he so controverts the same, and then on oath aver his belief in the truth thereof; and that is all that is meant by the phrase, specifically deny. And this the defendant has done. ITe has stated what he denies, how, and the means that enabled him so to deny, and swears he believes it all to be true. How else, I ask, do men usually obtain their general knowledge but upon information. When are they
I therefore insist, that the holding of the court in this case establishes, to say the least, a seeming inconsistent proposition of law, and a doctrine, as I think, unsupported by authority. It establishes the practice, that, if a defendant has not personal knowledge of the matters he seeks to controvert by his answer, although he may have full i/nformation thereof, which he believes to be true; yet, nevertheless, he must be turned out of court, unless he will consent to the commission of downright perjury by swearing that he has not, and cannot obtain knowledge or information sufficient to base a belief upon ; or, in other words, if he has a belief, he cannot answer unless he will swear that be-llas not a belief. Such holding, such construction of our statute, is not in my judgment liberal, with a view to substantial justice. In many cases it would defeat the end of justice. It is wrong in principle, bad in tendency. It superinduces perjury, turns out of the temple of justice suitors, whose convictions of honesty, truth and right, would not allow them, by resort to perjury for worldly gain or the maintenance of right, to endanger their liberty here, or their happiness hereafter.
Not only for the reasons given above do I dissent horn my brethren, but as well for the reason that I cannot see upon what authority the court below gave judgment for the plaintiff, without disposing of the answer by demurrer or motion, and without proof of the plaintiffs’ claims for damages.
TJnder the New York Code (and perhaps that of California), it is expressly provided that in such case judgment may be rendered upon notice given to the opposite party; but,- even then, if it is upon a complaint other than for the unconditional payment of money, an inquiry as to damages must be had; but no such provision is found in our statute. Judgments by default can only be rendered as provided in sections 30 and 53 of our Practice Act. Sham and irrelevant answers must be disposed of by motion or demurrer as provided in section 60 of that act. And no judgment can be rendered, as upon default, in any case under our civil practice, where an answer is- pending until such answer
But my brethren say that the motion for judgment in this case in effect operated as a motion to strike out, strike off, or in other words, to dispose of the answer, for the reason that it was sham or irrelevant. Concede this to be true, although a novel name and novel mode of procedure to dispose of a pleading under our statute, and how does it leave the case ? It leaves a complaint for the recovery of damages upon default, upon which, as shown by the record, the court, without proof , proceeded to, and did, render judgment for the exact amount claimed in the complaint; and they say, that in New York the practice of moving for judgment on a sham answer has been sustained. That undoubtedly is true, the New York Code, as well as that of California, so provides; but even there the Code requires that an examination must be had and proof made as to the allegations of the complaint when not for the unconditional payment of money. And they refer to the case of Lomme v. Kintzing, 1 Mon. 295, as authority, where the court say: “Under our practice, where an answer raises no material issue, the plaintiff may either move that it be stricken out as sham and irrelevant or move for judgment.” The court, when rendering this decision, must have had before them either the New York or California Code, whereby it is expressly provided in those exact words, that such proceeding may be had, whereas our statutes make no provision for moving for judgment. And yet this is all the court there say in answer to the able argument of counsel in support of the proposition that no judgment could be rendered upon the .pleading without proof. I cannot think the court so intended. If it did, I cannot but think it bad law, and that its reversal will be hailed by the profession as one of much needed reformation.
But it is said, for this, no error is assigned, and therefore the court is not bound to search for error not assigned. It must be remembered that this case is here upon appeal, by which the whole case was removed to this court with the whole record before us, and the affirmance of the judgment below is virtually, and to all intents and purposes, the judgment of this court, and we are
I bad prepared a more lengtby discussion of tbis case, but, being reminded by that commanding authority cited by counsel, “ Many words, they darken speech,” I substituted this, with the hope that those who may think me in error, will not only take the trouble to examine the question in connection with the opinion of the court, the legislation of the various States and Territories, and the authorities cited by counsel, but also to appeal to the legislative tribunal for relief against this seeming unjust discrimination between -those who may, and those who may not, care for or fear the dangerous crime of perjury.
