Cason v. Armour Fertilizer Works

Roan, J.

Where suit is brought on an open account which is duly verified by the plaintiff, and in the second paragraph of the petition it is alleged that the account is past due and no part of the same has been paid except as shown by credits in a bill of particulars attached to the petition, and that the defendant fails and refuses to pay the account, an answer in which it is averred that “defendant' denies that he is indebted to plaintiff as alleged, but admits that he has not paid the alleged balance due on said alleged account, and admits that he refuses to pay .the same,” is a denial of any indebtedness on the account, and should not have been stricken, on motion made at the trial term, upon the ground that such an answer was not a compliance with section 4728 of the Civil Code. The answer may have been subject to special demurrer, but was not subject to dismissal on motion made at the trial term. Judgment reversed.