Manny & Co. v. French

Pleading: knowledge or information. The petition is in the usual form. It avers the execution of the note by the defendant to the payee; that the payee for a valuable consideration duly indorsed and transferred the note to and that the same was, less a specified credit, due and unpaid. A copy of the note and indorsement is given. The petition was sworn to.

The defendant filed his answer in three counts, first admitting the execution of' the note as stated; second, “ and whether the said petitioner is the owner of said note he has not sufficient information to* form a belief, therefore he cannot admit or deny the same.” Third, the answer claimed set-off as to a part of the note. The answer was sworn to.

The plaintiff admitted the set-off as pleaded, and moved for judgment on the pleadings for the balance. The defendant resisted the motion and claimed the right to have the cause tried-by a jury. The court sustained the motion and rendered judgment accordingly. The defendant assigns this action as error.

■There was no error in the action of'the court. Our Code provides (Rev. § 2880) that the answer shall con*252tain, “ second, a general denial of each allegation of the petition, or else of any knowledge or information thereof sufficient to form a belief * *

The second count of the answer, fails to make any issue to be tried by a jury or otherwise, for the reason, that it does not- deny that defendant has knowledge but only that he has not information sufficient to form a belief; the Code requires both, and the answer contains but one. See Ketcham v. Lyerega, 1 E. D. Smith (N. Y.) 553; Edwards v. Lent, 8 How. Pr. 28; Elton v. Markam, 20 Barb. 343; Smith v. Greenin, 2 Sandf. S. C. 702

Our system of pleading is.essentially a fact system; it is furthermore a system adapted only to substantial issues, and cannot propei'ly or successfully be. diverted to sham defenses.

Affirmed.