168 P. 427 | Utah | 1917
Appellant’s counsel, in their brief, state the purpose of the action and the question presented for decision in the following words:
“A suit was commenced in the name of the Eile Candy Company v. Tooele Meat & Storage Company. The judgment was obtained by plaintiff, and upon appeal was affirmed. Plaintiff in this case now seeks to set aside the judgment last referred to on the ground of fraud. The complaint sets out that a fraud was perpetrated, consisting of fraudulent allegations made in the original cause, as to the legal entity of the Eite Candy Company. That it was alleged in the complaint that the Eite Candy Company was a corporation of the state of Utah, when in truth and in fact there did not, and had not existed, any such corporation. That the judgment was and is absolutely null and void.”
In paragraph 5 of plaintiff’s complaint, in referring to the former action, it is alleged:
“That the said action was commenced under fraudulent and false allegations as to the legal capacity of said plaintiff Eite Candy Company, whereas it was alleged in said complaint that the said*3 Eite Candy Company was a corporation of the state of Utah, when in truth and in fact there did not at that time, or at ány time, exist any such corporation organized under the laws of the state of Utah, and that no such company had ever complied with the laws of said state relating to corporations or come into legal existence.”
Allegations of a similar import are contained in paragraph 6 of the complaint. It was further alleged that the judgment, for the reasons stated, was void, etc. The defendants filed a joint answer in which denials relating to the foregoing allegations were in the following form:
“Answering paragraph 5 of said complaint these answering defendants, not being sufficiently advised, upon information and belief deny each and every allegation of said paragraph 5.”
The allegations of paragraph 6 were denied in precisely the same words. The foregoing denials were followed by a general denial in the following words:
“Defendants further answering deny each and every other allegation in said complaint, not hereinbefore admitted or denied.”
The defendants also pleaded affirmative defenses, which it is not necessary to refer to here. At the hearing the plaintiff adduced no evidence in support of the allegations of its complaint, while the defendants produced documentary evidence in support of the averments contained in the answer. The court made findings of fact and conclusions of law in favor of the defendants and entered judgment accordingly.
Plaintiff appeals from the judgment, and, among other things, contends that the court erred in not entering judgment in its favor on the pleadings. In that connection it is contended by appellant’s counsel that the fraud alleged in the complaint is not denied by the defendants in their answer and hence is admitted. "While it is true that the specific denials are not in the most approved form, yet it is manifest to one reading the answer that the
Again, the specific denials are followed by a general denial, which, in all respects, was in compliance with our statute. If it were held, therefore, that the specific denials, in .the form in which they are stated by the defendants, were insufficient to present an issue of fact, yet it certainly cannot be held that they constitute a formal admission of the facts stated in the complaint. The most that could be claimed in that regard would be that, in view that the specific denials are insufficient to present an issue, for that reason there is failure on the part of the defendant to deny. Where, however, as in this ease, the specific denials are followed by a general denial which is sufficient to present an issue of fact, how can it truthfully be said that the allegations of the complaint are admitted so as to entitle plaintiff to judgment on the pleadings? Under our statute (Comp. Laws 1907, section 2986) the allegations and averments in pleadings must be liberally construed. That section reads:
“In the construction of a pleading for the purpose of determining its effect, its allegations must he liberally construed, with a view to substantial justice between the parties.”
If, therefore, we apply the provisions of that section to defendants’ answer in this case it cannot be doubted that the answer does present an issue of fact, and hence is sufficient to withstand a motion for judgment on the pleadings. The court therefore did not err in refusing to enter .judgment for the plaintiff.
There is, however, another reason why the court did not err in refusing to enter judgment for the plaintiff on the pleadings. Plaintiff’s claim rests entirely upon the
There is still another reason why this appeal must fail, and why plaintiff fails to state a cause of action in its complaint. The objection that the plaintiff has not legal capacity to sue, or to maintain or prosecute an action is one that, under all of the codes, must be taken at the proper time and in the proper manner or it will be deemed waived. Such an objection is like one that the plaintiff is not the real party in interest. That objection must be made by special demurrer if it appear on the face of the complaint,
“If no objection be taken, either by demurrer or answer, the defendant must be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.”
The district court, upon the evidence produced by the defendant, however, found that plaintiff’s objections have no foundation in fact, and that is another reason why this appeal must fail.
Again, even though it were conceded that the judgment in the former action was obtained through a misstatement of the facts respecting the legal capacity to sue, yet that, standing alone, would not be sufficient cause to set aside the judgment in this case. The rule in that regard
There are therefore a number of conclusive reasons why this appeal cannot prevail. The judgment is therefore affirmed, defendants to recover costs.