49 Colo. 526 | Colo. | 1911
delivered the opinion of the court:
There are only two questions in the case: First, were the demurrers properly sustained; second, is the judgment right. Both must be answered in the affirmative. The second and third defenses plead fraud in procuring said certificate and contract, in that plaintiff represented himself a man of good moral character, whereas his character was bad. Fraud cannot be pleaded this way generally. The acts or things constituting fraud must be set out. Saying one’s character is bad, is the pleader’s conclusion. His acts, or things he does which make it bad, must be pleaded. Others might form different conclusions. The pleader has no right to- make himself the judge of another’s character and deprive the court of the facts upon which he bases his conclusion. The third defense states rumors circulating
This action was on a written contract for the recovery of liquidated damages and the court could have entered a default judgment without reversible error for twb reasons: first, defendant’s counsel during the trial stated to the court that he relied wholly upon his demurrers and gave the court to understand that he did not care for the issue or traverse raised by the first .defense, did not rely upon that. The effect of his action was to abandon or waive in open court, during the trial,- his first defense. He should now he held to his statement during the trial. When counsel elected to stand upon his answers and waived his first defense, plaintiff was entitled to a default judgment upon his complaint, without evidence.' The complaint was confessed, the damages were liquidated and no evidence was necessary. In the second place, the complaint was verified, the answer was not. If the plaintiff had moved to strike it from the files for want of verification, and judgment on the pleadings, it would not have been error to have sustained the motion. The court would probably have, been reluctant in doing so, but it would not have been error in this case as it stood. Judgment by default without evidence, would have accomplished the same' result. It is immaterial, therefore, in the result reached, whether the evidence proved all the allegations of the complaint. Plaintiff was entitled to a judgment without evidence. If he imperfectly did an unnecessary thing by introducing evidence, it did not destroy his right to a judgment.
The statute gives county superintendents power to' revoke certificates they have issued, but school boards have no such power. The distinction in apparent. A county superintendent’s certificate is for
The judgment is affirmed. Affirmed.
Chief Justice Campbell and Mr. Justice Musser concur.