33 Minn. 505 | Minn. | 1885
The second paragraph of defendant’s amended answer sets up a defence, partial at least, to the second cause of action alleged in the complaint. The third paragraph of the amended answer sets up a counterclaim. Upon the hearing of the motion to strike out the ■entire answer as sham, affidavits of third persons, in addition to his ■own, were read by plaintiff, fairly tending to show that both of the
When the allegations of the answer or defence are fairly supported, as in this case, by the affidavits of the defendant and other persons, as against like affidavits on behalf of plaintiff, it cannot ordinarily be said that the falsity of the answer is clear and indisputable. Por a court to assume to say this, unless in very extraordinary circumstances, such as do not exist here, would, in effect, be to try the controversy between the parties upon affidavits, and to deprive the defendant of his right to a regular trial by jury or otherwise, with all its manifest advantages. Obviously this will not do. Barker v. Foster, supra; Bliss, Code PL § 422. But, as this seems to us to appear by the record to have been what the trial court did do in the present action, the order striking out the answer, and for judgment for plaintiff, is reversed, and the case remanded for further proceedings. •
