Kirstein v. Madden

California Supreme Court
Kirstein v. Madden, 38 Cal. 158 (Cal. 1869)
1869 Cal. LEXIS 131
Sawyer

Kirstein v. Madden

Opinion of the Court

Sawyer, C. J.,,delivered the opinion of the Court:

The affidavit and papers on the motion for leave to amend the answer, we think, upon the whole, are sufficiently referred to and identified in the statement on appeal to make them a part of it, and entitle them to consideration. The denials of the first answer were insufficient to raise an issue, and their sufficiency was properly tested on the motion for judg*163ment. The statement shows that, upon that motion, the defendant, Madden, offered to verify and file an amended answer, and asked leave to do so, upon an affidavit manifesting his good faith. We think he ought to have been permitted to amend his-answer. From oversights of counsel, committed under pressure of business, pleadings are often defective. In such cases, when an offer to amend is made, at such a stage in the proceedings that the other party will not lose an opportunity to fairly present his whole case, amendments should be allowed with great liberality. The denials in the proposed answer are “upon his information and belief,” instead of the statutory language “according to his information and belief,” and respondent insists that they are still insufficient. It may well be doubted whether the former mode of denial does not allow a little wider field for evasion; but, however this may be, it has been widely adopted by pleaders, and it is now settled that it is sufficient. (Vassault v. Austin, 32 Cal. 606; Roussin v. Stewart, 33 Cal. 211; Jones v. City of Petaluma, 36 Cal. 230.) The proposed answer, therefore, took issue on the material averments of the complaint, which had been defectively denied in the first answer, and we think the Court should have permitted the amendment.

We find nothing to authorize any affirmative relief in the cross-complaint.

Judgment reversed and cause remanded, with directions to permit defendant, Madden, to file his amended answer when duly verified.

Reference

Full Case Name
MARGARET KIRSTEIN v. JOHN MADDEN and CHARLES KIRSTEIN
Cited By
6 cases
Status
Published
Syllabus
Practice—Statement on Appeal.—If the statement on appeal, from an order refusing a party leave to amend Ms pleading, sufficiently refers to and identifies the affidavits and other papers used on the hearing of the motion, and which appear in the transcript of the record, it is sufficient, and they need not be set out at length in the statement. Practice—Amendments. — Amendments should be allowed with great liberality-in all stages of the proceedings, unless the opposite party would thereby lose an opportunity to fairly present his whole case. Answer.—In a verified answer, a denial \upon\" information and belief is sufficient."