Onedia Land Co. v. Richard

Whitfield, J. 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 [886] irrelevant or is otherwise improper. .While the averments of affirmative matters contained in the answer in this case may be defective, the answer is not irrelevant or wholly insufficient. But even on a motion to strike the entire answer, the Chancellor may, to facilitate the administration of justice, allow amendments so that the asserted defense may be properly stated. This is particularly so when the answer contains denials of material allegations of the bill of complaint. For the error in striking the answer the■ decree is reversed. Browne, C. J., and Taylor, Shackleford and Ellis, JJ., concur.