Slack v. Cotton

Without reviewing the cases, I think it sufficient to say, that it is now conceded by the majority of the courts, that the old practice of striking out pleas as false, (Graham’s Practice, p. 250,) is applicable to an answer under the Code, where such answer is not verified. The defendant may verify his answer if he please. If he does not, and if, when his pleading is attacked on the ground of falsity, he will not sustain it by an affidavit of its truth, it should not be left upon the record. If false, it is a sham defence. I am at a loss to see how there can be any doubt as to the propriety of calling an answer, which is shown to be false, and which the defendant will not, in any manner, verify, a sham answer. It has no foundation; it was not put in in good faith, but is evidently intended to embarrass the action and cause delay.

The defendant, on this appeal, objects that the Code does not allow part of an answer to be stricken out as false. The words are, sham answers and defences may be stricken out on motion. Any defence set up in the answer may thus be stricken out, and the residue of the answer stand.

The part of the answer first stricken out was as to the execution of the undertaking. The original was produced, acknowledged, and could be read in evidence without proof. The defendant did not deny it by any affidavit, and, as set up in the answer, it constituted a separate defence.

The same remarks apply to the 3d and 5th subdivisions of the answer. Both were separate defences, shown to be false by affidavits on the part of the plaintiff, and not in any wise sustained even by the defendant’s affidavit of his belief of their truth.

The portion stricken out in the second subdivision, is not, by itself, a defence, but one of the allegations required by the defendant to make out the defence he there intends to set up. I do not understand the Code as allowing such a practice. The court may strike out the whole answer as *401sham. So, also, any separate defence may be stricken out as sham. But it is not allowed to take up one defence, and strike out of it one or more allegations as false, leaving the residue, and by such a course entirely changing the defence. If the plaintiff cannot move to strike out the whole defence as sham, he surely ought not to be allowed to change its nature by striking out parts of it, and leaving the residue on the record. Such would be the case in this part of the answer. It sets up the ability of the principal to pay the debt on an execution, and that this action was brought by a fraudulent agreement between the plaintiff and principal to get the money out of the sureties. To strike out the latter part would leave on the record, as an answer, the allegation that the principal was able to pay the debt. This would be insufficient, and might be demurred to as amended, and yet, in its original state, might be a good defence. The motion should have been to strike out the whole defence; and as it was not so made, I think this portion was erroneously stricken out.

The order appealed from should be so modified as to deny that part of the motion which asks to strike out a part of the paragraph on the second folio, and affirmed as to the residue, without costs to either party on this appeal.

Offered accordingly.