Samuel Cupples Wooden Ware Co. v. Jensen

Palmer, J. The plaintiffs bring this action in the district court to recover of defendants the sum of $308.49, which they allege is due for merchandise sold and delivered. The complaint is in the usual form. The amended answer admitted the copartnership of the defendants as set forth in the complaint, and a general denial of each and every other allegation of the complaint. Thereupon the plaintiff filed its motion to strike out the amended answer as sham; and in support of the motion the attorney for plaintiff filed his affidavit, which he claimed tended to show the falsity of defendants’ answer. Upon the pleadings and affidavit the court sustained the motion to strike out the answer as sham, and judgment was rendered for the plaintiff. The defendants bring the case to this court to review that order and the judgment rendered thereon. The answer was verified by defendant Jensen. I may be permitted to state in passing that some members of the court were of the opinion that the affidavit was insufficient to show the answer to be false; but, assuming it did perform that office, can a verified answer, consisting of a general denial, if shown by affidavit to be false, be stricken out as sham? I think not. In arriving at this conclusion, I am not unmindful of the [151] force of various propositions strongly urged by counsel for respondent; that such construction and effect should be given to Section 121 of the Code of Civil Procedure as would compel parties to present real issues; and not allow courts, by false- and fictitious pleadings, to become machinery in the hands of dishonest litigants or unscrupulous practitioners to work out injurious delays of justice. Such may occasionally be the result; still there is not such a glaring tendency to such practice as would seem to warrant a departure from the rule which to us seems firmly established in reason and precedent; that under a general denial by the code practice, or general issue under the common law system of pleading, the defendant may require the plaintiff to establish, by proof, all the material facts necessary to show his right to a recovery. And While from the standpoint of morals and professional honor we concur fully with Mr. Justice Strong in the vigorous language he uses in People v. McCumber, 18 N. Y. 315, still it must be observed that all that was said by that eminent jurist on the subject of general denials was entirely gratuitous, and not in any sense presented by the pleadings in that case; and so far as general denials in an answer are concerned, the views therein expressed have never since that time been considered as law by that eminent court, but quite the reverse. The question at bar was squarely presented in Wayland v. Tysen, 45 N. Y. Ct. App. 281, and the law there laid down by Mr. Justice Grover was approved by the same court in Farmers National Bank of Ft. Edward v. Leland, 50 N. Y. 673. The supreme court of California reaches the same conclusion in Fay v. Cobb, 51 Cal. 313. The reasons assigned by those courts seem to a majority of the members of this court as conclusive of the question here presented, and the order and judgment is reversed. Edgerton, C. J., Smith, Francis and McConnell, JJ., concur.