114 P. 1026 | Cal. Ct. App. | 1911
The plaintiff, in a verified complaint, sued the defendant for $1,972.88, the balance due for boarding the employees of defendant, and furnishing material and teams and performing certain services for defendant at its special instance and request.
The defendant's verified answer was as follows: "Comes now the defendant above named and for answer to the complaint in the above-entitled action, admits, denies and alleges as follows: First, it admits its incorporation as alleged in paragraph 1 of said complaint; second, upon its information and belief it denies each, all and singularly the allegations contained in paragraphs 2, 3, 4, 5 and 6 of said complaint; and third it alleges that as to the allegation contained in paragraph 7 of said complaint it has not sufficient information to enable it to make answer, and for that reason it denies the allegations contained in said paragraph 7 of said complaint. Wherefore said defendant prays to be hence dismissed with its costs." The plaintiff moved for judgment on the pleadings upon the ground that "the complaint filed in said action is verified and that the answer therein does not deny a single material allegation of said complaint." The motion was granted and judgment rendered accordingly for plaintiff, on July 5, 1910. Afterward a motion was made by defendant to have said judgment vacated and to be permitted to file an amended answer. This motion was heard on affidavits and counter-affidavits and was denied by the court on July 18, 1910. The court's action in rendering said judgment and denying said motion is herein assailed.
It is to be observed that not a single allegation of the complaint is denied positively. As is stated inLoveland v. Garner,
The rules of pleading, under our system, are intended to prevent evasion and to require a denial of every specific averment in a sworn complaint, in substance and in spirit, and whenever the defendant fails to make such denial, he admits the averment. (Doll v. Good,
In Hewel v. Hogin,
In Bartlett Estate Co. v. Fraser,
In San Francisco Gas Co. v. San Francisco,
As to the allegations in reference to the assignments, they are entirely immaterial, for, as pointed out by respondent, the assignment and reassignment left the claim as it was originally, and they really involve probative matters that have no place in the pleading. (Miles v. McDermott,
The complaint is sufficient without them, and therefore their immateriality becomes apparent. (Whitwell v. Thomas,
In reference to the appeal from the order denying the motion to set aside the judgment and permit defendant to file an amended answer, it is really sufficient to say that it cannot be determined, in the absence of a bill of exceptions, that there was an abuse of discretion. Even if we assume that the affidavits are sufficiently authenticated, we cannot hold that no others were read and filed at the hearing. (Manuel v. Flynn,
But, looking at the showing as it appears in the record, we can readily understand why the court below should look with disfavor upon defendant's application. For, among other things, it appears, apparently without contradiction, that the president of the corporation declared to Mr. Zany that he *378 would keep said plaintiff out of the money due him just as long as he could; that he would keep the suit pending as long as possible; that he would carry said action to the highest court of the land and would cause said Zany as much trouble and expense as he could; that he would fight any suit in such a manner that Zany should never get a cent, for it would cost him every dollar that he might recover in costs and attorneys' fees, and that he would drive Zany out of the county a beggar. There are other statements in the affidavits strongly tending to show the entire absence of good faith and the utter want of any valid defense on the part of appellant; to which statements the trial court had a legal right, of course, to give full credit.
In view of the record, it is perfectly clear that we cannot disturb the judgment or order without doing violence to well-established principles of procedure and exceeding the prescribed limits of appellate jurisdiction.
The judgment and order are affirmed.
Hart, J., and Chipman, P. J., concurred.