Mills v. Territory of New Mexico , 13 N.M. 174 ( 1905 )

OPINION OP THE COURT.

MILLS, C. J.

— This case is brought to this court, for us to determine whether or not the court below committed error in striking out the whole of the answer filed by the defendant Mills.

1 The complaint contains six paragraphs, and in it the bond sued on is set out in full. By the answer the first paragraph of the complaint is denied in part while the third, fourth, fifth and sixth paragraphs are denied in toto. The answer also seeks to set up new matter as an affirmative defense. Motions to strike out the whole or any part of a pleading are recognized by our code of civil procedure. Sec. 2685, Compiled Laws, 1897, Sub-Sec. 50 and 51. By these sections a frivolous answer and irrelevent or redundant matter in any pleading may be-stricken out on motion of the adverse party.

2 A frivolous answer is one which assuming the truth of its contents is so clearly as palpably bad as to require-no argument to convince the court that it presents nothing worthy of adjudication in due course of legal proceedings. 20 Encyl. P. & P. 19.

Where a material issue of fact is raised by the answer the court cannot strike out the entire answer. The-issue raised by the answer must first be disposed of.

As the answer denies a part of the first, and third, fourth, fifth and sixth paragraphs of the complaint, it seems to us that issues of fact are raised, and therefore the entire answer cannot be held to be frivolous, sham or irrelevant. Fifield v. Spring Valley Water Works, 62 Pac. 1054.

3 It is apparent that the main affirmative defense-sought to be set up by the answer, is that the defendant surety on the bond is released from liability by reason of the alleged fact that the territorial treasurer did not comply with the requirements of law before depositing the territorial money with the Taos County Bank and also that according to the terms of the bond ten thousand dollars was the sum that was to be .deposited in the Taos County Bank by the Territory, and that, when more than that sum was deposited the sureties were discharged. These are not frivolous defenses, and while they may not be good (and we disclaim all intention of now passing on their merits) they are defenses, which cannot be disposed of by the summary method of striking them out. They might have been reached by a demurrer, which the court could have passed upon.

Much of the answer appears to us to be bad because it is argumentative and because it pleads conclusions of law, but as issues are raised by it, we are of the opinion that the court committed error in striking out the answer as a whole, as asked for by the plaintiff below, and the ease is therefore reversed, and the cause remanded for further proceedings, and it is so ordered.

Frank W. Parker, A. J., Edward A. Mann, A. J., Wm. H. Pope, A. J., Ira A. Abbott, A. J., concur. McEie, A. J., having tried this case in the court below took no part in this decision.