Onedia Land Co. v. Richard
Onedia Land Co. v. Richard
Opinion of the Court
This proceeding was brought to foreclose a purchase money mortgage upon lands. The defendant’s answer contains in addition to other pertinent matters, averments of fraud and misrepresentation as to the title of the vendor. This answer was stricken on motion made upon grounds going to the sufficiency of the answer as a defense to foreclosure. There was a final decree for the complainant and the defendant appealed.
Section 3, Chapter 6907 provides that:
“If an answer set up an affirmative defense, set-off or counterclaim, the plaintiff may, upon five days’ notice, or such further time as the Court may allow, test the sufficiency of the same by motion to strike outi If found insufficient but amendable, the Court may allow an amendment upon terms or strike out the matter.”
This section does not expressly abolish exceptions to answers in chancery, and it is not now necessary to determine the extent to which Chapter 6907 modifies the statutes and rules as to equity practice. The quoted statute authorizes the court “to strike out” matters not proper to be pleaded, or to “allow an amendment upon terms;” but it does not authorize the striking of an entire answer containing matters that may be “insufficient but amendable.”
A pleading should not be stricken unless it is wholly
For the error in striking the answer the■ decree is reversed.
Browne, C. J., and Taylor, Shackleford and Ellis, JJ., concur.
Reference
- Full Case Name
- Onedia Land Company v. Adam C. Richard
- Cited By
- 10 cases
- Status
- Published
- Syllabus
- 1. A pleading should not be stricken unless it is wholly irrelevant or is otherwise improper. 2. On a motion to strike an entire answer in an equity suit, the chancellor may, to facilitate the administration of justice, allow amendments so that an asserted .defense may be properly stated.