7 Mont. 573 | Mont. | 1888
This was an action brought by plaintiff against the administrator of James B. Stewart, deceased, on a promissory note made by said Stewart in his lifetime, and one Arch McKinley, for $920. Said note was set out in the complaint, and was as follows:—
“For value received, we'promise to pay Finley Stewart the sum of $920 (nine hundred and twenty dollars), one year after date. Interest at the rate of one per cent per month until paid. “J. B. Stewart.
“Arch McKinley.”
On which note were the following indorsements:—
“April 1,1877. Received on the within note two hundred dollars ($200).
“February, 1884. Received twenty dollars, to be applied on the within note.”
The complaint alleged that no part of said note had been paid except said sum of $200, paid April 1, 1877, and $20, paid February, 1884; and alleges that the balance due on the note at the time the action was brought was $2,245.60, for which sum and interest from December 16, 1877, the plaintiff prayed for judgment. The complaint also contained the averment that George Budd was, by the probate court of Gallatin County, appointed administrator of the estate of James B. Stewart, deceased; that proof of the claim sued upon had been duly made in the probate court of Gallatin County; and said claim, with evidence of its correctness, was presented to said administrator for allowance, and was, by said administrator, rejected on the 7th of January, 1888. To this complaint the defendant filed the following answer: “And now comes the above-named defendant, and for answer to plaintiff’s complaint in this cause filed, denies, on his information and belief, that in the month of February, 1884, or at any time whatever, or at all, the plaintiff, or any one else for him, received from the decedent named in said complaint, or from any one else for him, the sum of twenty dollars, to be applied on the payment of said note; denies, on his information and belief, that no part of said note has been paid, either principal or interest, except the sum of two hundred dollars, paid on
The first question presented by this record is, Did the court err in overruling the demurrer to the answer of the defendant? Section 89 of the Code of Civil Procedure states what the answer must contain. These requirements are: “1. A specific denial of the material allegations of the complaint controverted by the defendent; 2. A statement of new matter constituting a defense or counterclaim. If the complaint be verified, the denial of each allegation controverted must' be specific, or be made positively, or according to the information and belief of the defendant.” ^ In Doll v. Good, 38 Cal. 290, the supreme court of that state says: “The rules of pleading under our statute are intended to prevent evasion, and to require a denial of' every specific averment in a sworn complaint, in substance and in spirit-, and not merely a denial of its literal truth; and whenever the defendant fails to make such a denial, he admits the averment”; citing other authorities. Did the answer in this case fulfill these requirements? "We think not. It is, throughout, a skillful evasion of the allegations of the complaint, rather than a specific denial of them. Take the first denial as an illustration. It denies that the
The remaining allegations of the answer, that the indorsement of the twenty dollars made on the note was not made until after the death of James B. Stewart, the maker of the note, was clearly not a good defense to the ‘ action. We are therefore of the opinion that the demurrer to the answer should have been sustained; and as the case must be reversed on this account, we might properly decline to consider any of the other errors alleged. But as the cause will probably be again tried in the district court, we will briefly consider one other point raised by the record, and alleged as error. This ■was the ruling of the court in refusing to permit Jane Stewart, wife of the plaintiff, to testify as to the payment of the twenty dollars alleged to have been paid on the note in February, 1884. The exclusion of this evidence is put by the court on the ground that the facts proposed to be proven by the witness occurred before the death of James B. Stewart, and on the further ground that the witness was incompetent to testify on account of interest. We think the exclusion of the evidence was wrong on both grounds. Section 648 of the Code of Civil Procedure is the one that defines what persons are incompetent to testify in a case like the present. The first part of that section is as follows: “No person shall be allowed to testify, under provisions of the last section, where the adverse party, or the party for whose immediate benefit the action or proceeding is prosecuted or defended, is
Judgment reversed.