*1 434 THIESS, v. PAUL RAPAPORT
H.W. Respondent, RAPAPORT, Doing and ETHEL Business Under Style Delicatessen, of Ethel’s the Name Appellants. No. (2d)
April 3, 1937. 60P. *2 Morse, Appellant: Harold M. *3 Hinman, Respondent: A.
Albert
OPINION Court, Coleman,
By the C. J.: complaint The in this action contains two causes of alleges, alia, action. The first cause of inter that action 1933, Gorbulove, 13, January also known as one C. special Gorbulove, defendants, to at their H. loaned $300, request, the defend- of instance and sum promised repay to months thereafter with ants six date, annum, percent per from at the rate interest attorney’s together fee case an with a reasonable to is collect said indebtedness. action instituted alleges nothing paid complaint also that had been The except on account interest. on said indebtedness $45 alleged prior to It is that the institution of further assigned Gorbulove had said claim the action the said plaintiff. to this tenor, cause of action is of the same second alleges January 23,
except it that on said that $100, loaned the defendant which defendants Gorbulove promised pay to six months after date with interest percent date, together per at 10 annum from with a attorney’s in case reasonable fee suit is instituted to indebtedness; nothing paid been recover said had indebtedness; prior on account of said and that to the assigned bringing had the action the claim been to plaintiff. $400, with
Plaintiff demands the sum of attorney’s fees, interest and less $45. Rapaport
On October the defendant Ethel attempted filed her wherein she answer allegations deny to of both of action of all of causes complaint. 2, 1935, February by On after the demurrers filed Rapaport overruled, Paul had been he defendant filed action, an answer to the first and causes of iden- second Rapaport, tical to that filed Ethel above stated. up separate He two affirmative to also set defenses upon. each of the causes of action sued In the affirmative defense to first the first cause of action, it is not the real interest; legal sue; party capacity that he has no affirmatively appears complaint and that it from the *5 planitiff complied has not with the laws of the State of Nevada relative to the establishment and con- ducting agency of a collection in the state.
For second affirmative and defense first action, second causes of this defendant engaged gambling game while intoxicated he in a with Gorbulove and that if defendant became indebted to gambling said Gorbulove it was as the result of such while intoxicated. general plaintiff
Thereafter filed a demurrer to all of Rapaport, upon the above-stated defenses of Paul and argument and submission thereof the court sustained the demurrer to the first affirmative defenses to each action, the said causes of and overruled the demurrer to the second affirmative to each defenses of the causes of action. plaintiff reply denying allega-
Thereafter filed his tions contained in the second affirmative each defense to of the causes action. April 9, 1936,
On the case came on for There- trial. upon plaintiff counsel for moved the court for pleadings against on the in favor of defendants. defendants asked leave to file amended pass upon answers before the court the motion. There- upon the court ordered that the case be continued until April 10, 1936, prepare and defendants were directed to present proposed amended answers. April 10, 1936,
On denying the court entered an order pleadings. the motion for on the Counsel for then permit- defendants moved the court for an order ting the defendants to file their tendered amended answers, plaintiff objected to which motion counsel for ground copy proposed on the that no of the amended upon him, showing answers had been served that no entitling sought, had been made defendants to the order and for the further reason that it would necessitate a postponement trial, and insisted that the court proceed with the trial. reciting by
The court entered an order the tender answers, proposed amended and that defendants to, copies, duly simultaneously certified were served upon plaintiff. Thereupon the court sustained *6 application objections plaintiff, of and ordered that the upon denied and that the case be tried the then existing pleadings. case, offering
Thereupon plaintiff rested his without rested, any evidence. also The defendants without offering any evidence.
Whereupon judgment counsel moved for for plaintiff. in favor of
Upon request defendants, of counsel for the court respective parties allowed the time in which to file briefs. pending expiration
Thereafter and the the of time filing briefs, allowed the for the defendants served answers, sup- and filed notice of motion to amend their ported by affidavits, by setting up more in detail the affirmative defense to which the court had theretofore overruled a demurrer. entering upon
Before points discussion of the urged by appellant, we must allude to the contention of respondent to the that exceptions effect the bill of was not settled within by the time allowed law. It appears exceptions from the bill of that the court made extending an filing order the time for excep the bill of tions, and that it was filed within that time. Counsel respondent contends that he was not served with time, notice of extension Vasiliou, and cites O’Neill v. 236, 1, support 274 P. of his contention. The point. case mentioned is not in There excep the bill of tions was stricken. Not here. exceptions so The bill of regular, is and cannot be point attacked now. is not well taken. respondent
The contention of the tran script appeal was not period filed within the fixed founded, the rule well point but since the is made in argument merits., pursuant on the and not to rule jurisdic- Ill, waived. is not a the contention is This Bankers, point. tional Obradovich Walker Bros. 587, (2d)
Utah 16 P. appeal properly not
It is contended that the was taken, appeal that defendants notice of states 1936, May 29, appeal judgment from the rendered on actually judgment not until whereas the was rendered 13, 12, appeal June 1936. The notice of is dated June day. filed and was on the same judge presided in case The facts are that the who district, point judge another and resided at a was arose, county far removed from the in which the case tried, and, long- pursuant was instituted case, practice, established he wrote his decision 1, 1936, ordering May 29, 1936, filed June dated plaintiff, the formal whereas favor of 12, 1936. was not filed until June 197, 198, (Stats. pp. N. L. c. Section 8886 C. taking court, 11), appeal so an to this sec. relative *7 by here, appeal applicable “An taken reads: is far as judgment filing in which the with the clerk of the court entered, appealed written notice stat- or order from is language ing quoted appeal The the the same.” from given judgment require not that date of the does stating simply requires written notice in the notice —it appeal judgment. from the provision This court had a similar under considera- Grayson, 231, 232, tion Bliss v. Nev. 56 P. following language quoted approval: when the was with court, tendency by “The of the indicated recent decisions, liberally, appeal is to construe notices of if, by hold fair or them sufficient construction reason- intendment, say appeal able the court can is particular taken from the in a case.” “Applying The this rule court there observed: notice, clearly apparent, appellants it is appeal from an order of the district court of the state Nevada, district, judicial County, Second Humboldt cause, particular denying the made in said case trial, appellants supreme
motion of for a new to vigorously court. It contended that the notice is fatally defective, any in that it fails to describe order appealed from. do believe We not this contention is tenable.” appeal
In the instant case it is clear from the notice of ample pur- that the had information as to the pose appeal, way of the and that he was in no misled. very We would be technical to hold that this court did acquire jurisdiction made, point not because of the point hence we must hold the not well taken. appellant. We now come to the contentions of The assignments purported brief forth four sets of errors. The substance first three is that the court erred rendering against the defendants. The assignment fourth the effect that the court erred is.to permitting appellants respective in not to amend their during answers the trial and after the trial of the case had been concluded. separate Rapa-
As to the answer filed Ethel port, may say we it raised no material issue at all. opening paragraph of her answer to the first cause action reads: Defendant, Rapaport,
“Comes now Ethel her and for separate Complaint and distinct answer filed against herein, admits, alleges follows, her and denies as to wit.” separate denials, desig-
Thereafter there are three II, IV, V, read, except desig- nated as to paragraph denied, nation of the as follows: “That knowledge defendant no has of the matter contained paragraph-of said and therefore denies the same.” *8 Act, 104
Section of our Civil Practice 8602 section L., N. C. reads:
“The of answer the defendant shall contain: general specific allegations A“1. or denial of the complaint the intended to be controverted the defend- ant, according or a thereof denial to information and
443 any allegation denying not belief. In defendant, knowledge presumptively of the within the issue, allegation put to it shall be sufficient such state, allegation, that he has the to to such defendant as knowledge upon which to not sufficient or information base a belief.” may reading section, one of it is seen that
From a this “according deny allegation complaint in a to infor- an allega- belief,” deny he wishes to an mation and if knowledge presumptively of tion not within of facts may by stating defendant, deny that as he the same knowledge not or informa- to he has such facts sufficient upon tion to base a belief. reading paragraphs of the answer
From a attempted comply quoted, not with either denials do There denial requirements is no mentioned. belief, according nor is there to information and presumptively within her knowl not denial of matter knowledge stating edge, by that not sufficient she has upon Denials a belief. or which to base information allegations according belief to information and knowledge the defend presumptively not within the statutory requirements. strictly ant to the must conform 621; McCall, 21 Am. Dec. Humphreys 9 Cal. 70 98-103; Code pp. to Bancroft Cal. Jur. secs. Pl., p. 602, 411. sec. answer, paragraph
As to III of this defendant’s simply it that she or is states she denies was indebted to Gorbulove or the defendant in the sums sum, alleged, any attempt There or or at all. is no deny to the fact out of which indebtedness long attempt to arose. It has been held that such an deny Pomeroy indebtedness no issue. Code an raises 578; Pl., 334; (3d ed.) Rem. sec. Code sec. Bliss 805; Ency. Pr., p. p. 154, Pl. & Jur. 21 Cal. sec. cause of answer second action sub-
stantially the the first cause of action. same said, what we it follows that
From have whatever; Rapaport no of Ethel raises issue answer *9 sufficiency however, in no the of this answer was since challenged on the way came on for trial until the case merits, to amend we think defendant was entitled this repeatedly of course. This court has her answer as making up practice issues as of fact the condemned advantage unwary attempting the take and then by Tel. Co. v. pleader motion on the trial. Cal. State 150, Patterson, Nev., said, Gallagher Dunlap, 2 Nev. it was
In rehearing: response petition to a for a puts regular practice, in a when a defendant “The answer, be to demur to that answer. defective would sustained, then a matter of course If the demurrer is as case, In this instead the allowed to amend. defendant is demurring plaintiff the moved for to the answer hardly proper pleadings. on the This is merely or defective form course where answer * * * denial, case. manner of this attempted denial of a fact “But when there is an action, necessary plaintiff’s however to sustain may be, by imperfect reached that denial it should be * demurrer. placed position “The cannot be in a better motion, having irregular by he made a rather than if he had demurred.” would be Wilder, court, Treadway v. in deal- In ing question, with this said: pleading quoted, portion
“There is in the of the before action, properly attempt up if an to set a cause of might pleaded proven appellant have entitled the Upon pleading demurrer to the relief claimed. bad, pointed held but the defect out would have been by amendment. No could have been remedied such given, judgment may opportunity was a technical right; spirit have cut off a such is not the substantial practice.” code, nor, interpreted, properly its when Colorado, supreme court of in Richards v. Stew- art, 205, 124 P. that if there be valid 53 Colo. held pleaded objection defenses for failure to state
445- facts, they by demurrer, should be raised and that such objections cannot be taken motion for pleadings, oppor- would for that be to foreclose all tunity of amendment. plaintiff’s
We think the court should have treated judgment, Rapaport *10 motion for far Ethel so as is con- cerned, answer, as a demurrer to her and have allowed course, prejudicial her to amend as of and that error ordering judgment against was committed in her. separate Rapa- answer of defendant Paul
port Rapaport, identical is answer of Ethel as stated, except above as to the affirmative defenses. only Hence we need refer to to affirmative defense to each of the causes of action. inquire entering
Let if us now the court erred in against in favor of the and this ruling court, judg- defendant. The on the motion for plaintiff, position ment in favor of took the allegation attempt deny to of indebtedness averred complaint issue, in the raised no and further held that support failure to offer evidence in of the affirmative action, defense to each of the causes of which had there- good demurrer, plaintiff tofore been held was entitled holding judgment. In we think erred. this the court The affirmative defense to each of the of action causes pleaded in the aside from the reference to action, the causes of reads: any purported
“That if there was consideration for alleged upon indebtedness sued in the Plaintiff’s Action, was, is, illegal First Cause of the same and an consideration, against public policy, .and one that is viz: That while this Defendant was so intoxicated and under intoxicating liquor, gambled the influence of he at a game being conducted, operated, of chance then owned managed by Gorbulove, C. in and at the home of Gorbulove, Gorbulove, said C. also known as H.
City Seattle, Washington, of in the State of which said game commonly of chance is known as and called ‘Black Jack,’ and if Defendant became indebted to said C.
446 alleged Gorbulove, as Gorbulove, H. known as also Action, was incurred the same First Cause Plaintiff’s gambling C. with said money while so he had lost for Gorbulove, H. Gorbulove.” known as also by way pleading new mat were a defense
If this holding of avoidance —the is confession ter —that right, clearly in that case court would the trial would be proving matter in avoidance the burden Ferguson Rapaport. v. Ruther upon Paul defendant Pruett, P. 385; 42 Nev. v. ford, Dixon Sabin, 50; Piercy v. Soulsby, 11; 21 Cal. Coles Dec. 692. Am. 10 Cal. quoted, pleaded, not confess
But the matter
does
hand,
any liability
On the other
it
ever existed.
for the
was no consideration
shows that
there
grew
gambling
out of a
trans-
indebtedness —that
it
initio.
this matter is
action which was void ab
While
defense,
being
it not
matter
as an affirmative
stated
avoidance, merely
the aver-
a denial of
confession and
complaint
ment in
of a loan to the defendants.
*11
of facts
It
rule that a statement
is well-established
inconsistent with the facts
in an answer which is
avoid,
not confess and
but
does
allegation
nothing
which is
more than a denial
(2d
on Code Pl.
of action. Bliss
the basis of the cause
430;
333;
Fulton,
Alden v.
ed.)
21
Goddard
Cal.
Halbouer,
904;
87, 93,
Carpenter,
1
Cuenin v.
7 Colo.
P.
885;
Cor
Nenzel v. Rochester Silver
32
74 P.
Colo.
Young
632;
352-358,
v. Hol
poration,
259 P.
man,
Nev.
But counsel for pleaded defense. The court not constitute a matter does defense, having a demurrer to overruled theory having the matter tried on the case been defenses, improper to for us pleaded it would be stated judg- judgment, reasons that for the same affirm the amend, opportunity to pleadings, without on the ments approved. are not out, ordered that pointed it is the errors
Because of defendants, reversed as to both of the permit and the trial court is directed to the defendants to amend their answers.
On Costs 10, 1937. (2d) June 69 P. Morse, Appellants.
Harold M. for Hinman, Respondent. A. Albert
OPINION
By Court, Coleman, C. J.: Respondent appealed ruling has from the of the clerk disallowing of this court exception appellant’s his item of costs Transcript entitled Appeal, “Clerk’s $29.80.”
It is contended that the clerk of the trial court can *12 certify only constituting the documents roll, appellant to entitle therefor, to recover costs and documents other than the roll are con- tained in Transcript Appeal.” the “Clerk’s on
The fact is that Transcript so-called “Clerk’s on excep- judge as a bill of the trial
Appeal” was settled by respondent, and objection tions, apparently without excep- a bill of appears was not attacked as far as so (and not then on court this until it reached tions opinion we assigned), grounds our former now exceptions was objection to the' bill held without merit. Transcript “Clerk’s
The documents contained
respective
briefs
Appeal”
referred to
were
on
though
In
properly
us.
before
counsel
treated
ruling
clerk
situation,
should
we think the
this
Sugarman
sustained,
authority
Iron & Metal Co.
Supply Co.,
Machinery
&
v. Morse Bros.
P.
It is so ordered. COMPANY, GOLD NOBLE MINES Corporation, OLSEN, OLSEN, v. R. L. J. C. Appellant, RICKETTS, HAZEL RICKETTS and VERNE Respondents. Husband, Her No. 3159 April (2d) 5, 1937 P.66