McDonald v. Pincus , 13 Mont. 83 ( 1893 )

Harwood, J.

Where the answer tenders an issue by direct and specific denial of the allegations of the complaint, or by alleging substantial facts which would constitute a defense, if true, we think the practice of receiving and considering affidavits contradicting those allegations, and thereon striking the answer out as sham, should not be approved, although there can be found some authorities in support of such practice. (See Bliss on Code Pleading, § 422; Boone on Code Pleading, § 252, and authorities cited and commented on.) Such a practice seems to lead towards a dangerous and unwarranted encroachment upon the right of trial, in the ordinary manner provided by the constitution and laws, before judgment can be pronounced. The courts sanctioning such a practice appear to have encountered that difficulty, and it has perhaps been the cause of seeming inconsistency in their decisions on that point of practice. Our Code of Civil Procedure provides upon this subject that “ sham and irrelevant answers, and irrelevant and redundant matter inserted in a pleading, may be stricken out, upon such terms as the court may, in its discretion, impose.” (§ 101.) Our view of the contemplation of that provision is that the sham pleading, or portion thereof to be eliminated on motion, is such as appears manifestly and inherently sham by reason of its incompatibility with the law, or the nature and condition of things within the judicial knowledge, or appears to be false by comparison with other declarations of the pleading; and these conditions should appear upon a consideration of the pleading alone!

In this case, however, the answer is wanting in allegations developing a ground of defense. All that portion of the answer which is not matter of admission of averment in the complaint is mere vague allusion to some agreement for labor, alleged to have constituted the consideration for the note in question; and without alleging the terms of the agreement alluded to, or even the conditions or effect thereof, it is alleged that the payee failed to perform “ said agreement,” the existence of which is only intimated. This is the only matter of defense attempted to be set up, and that is not set forth so as to enable plaintiff to reply to the same, or so as to allow the agreement hinted at to be proved, and therefore it could not be available as a defense under this answer. When the defective condition of the answer was brought to the notice of the defendants by the proceedings in this action, they appear to have made no effort to cure its incompleteness, under the liberal provisions of the code allowing amendments. Plaintiff was entitled to judgment on the pleadings, and the court was warranted in granting the judgment, without considering any motion to strike the answer from the files. Therefore let the judgment stand affirmed, with costs.

Affirmed.

Pemberton, C. J., and De Witt, J., concur.