Sands v. Maclay

KNowles, J. The most important question presented in this action is the right, of. a defendant to deny the allegations of the complaint upon information and belief. The Practice Act of this Territory, approved December 23, 1867, -in section 46, provided that the answer of the defendant should contain: “First, if the complaint be verified, a specific denial to each allegation to the complaint controverted by the defendant, or a denial thereof, according to his information and belief.” Under this provision of the statute, undoubtedly, the defendant could deny upon information and belief. This section of the Code, however, was amended in 1872, and it was provided that “ the answer of the defendant shall contain a specific denial to each allegation in the complaint intended to be controverted by the defendant.” Another mode of presenting an issue was also provided for, that was not in the former Practice Act, namely: “In denying any allegation in the complaint, not presumptively within the knowledge of the defendant, it shall be sufficient to put such allegation in issue for the defendant to state that, as to any such allegation, he has not and cannot obtain sufficient knowledge or information upon which to base a belief.” Civ. Pr. Act, § 56. In this amended Code, it will be observed that the clause allowing a denial upon information and belief was left out. We must presume that this was done intentionally. Can the term, “ specific denial,” be made to signify both a positive or absolute, denial, and a denial upon information and belief ? It is certain that the legislative assembly of 1867 did not consider that it could. If they had so understood that term, it is not reasonable to suppose that they would have provided for both a specific denial and a denial upon information and belief. If they had held that the term “specific denial” embraced both an absolute denial and a denial upon information and belief, then the clause they put into the statute, “ a denial according to information and belief,” was useless, mere verbiage. The more reasonable view is, that they used the term “ specific denial ” as [39] contradistinguished from a general denial, and a denial upon information and belief. Considering this tbe proper construction, and tbe conclusion is inevitable that, by leaving out tbe clause “ a denial according to information and belief,” tbe legislative assembly of 1872 intended to abolish that mode of denial. However, if other courts bad not come to tbe conclusion that a statute, amended as ours has been, excluded a denial upon information and belief, I should hesitate long before coming to such a determination. In 1851, tbe New York Code bad a provision in relation to denials in an answer similar to our Practice Act of 1867. That provided that a defendant might make a general or specific denial of each material allegation of tbe complaint controverted by defendant or a denial according to knowledge, information or belief. In 1852, the New York legislature amended this statute so that it read as follows : “ A general or specific denial of each material allegation of tbe complaint controverted by tbe defendant.” It will be seen that this amendment left out tbe clause “ a denial according to knowledge, information, or belief.” In tbe case of Thorn v. N. Y. C. Mills, 10 How. Pr. 19, Mr. Justice Bacon says, upon this subject: “ I regard tbe construction put upon this section (149) by Judge Daly, in Hacket v. Prichard, 11 Leg. Obs. 315, as tbe true exposition of tbe clause in question. Tbe clause allowing a denial according to a defendant’s knowledge, information or belief, has been stricken out, and I suppose tbe construction of tbe amended section now is, that tbe defendant must deny absolutely, without any qualification whatever, unless be can deny that be has either knowledge or information sufficient to form a belief. "Where be cannot do this, as where be has knowledge or information, and has formed a belief, be must deny positively, for be cannot traverse tbe allegation now, except in one of two modes. Tbe intention of tbe legislature appears to have been to allow tbe defendant less latitude in traversing tbe complaint than before, for they have designedly omitted tbe provision allowing a denial upon knowledge, information or belief.” In the case of Blake v. Eldred, 18 How. Pr. 240, Mr. Justice [40] JaMbs uses this language: “But I am inclined to think tbis second denial a sbam. It answers on information and belief, and then denies all tbe allegations in tbe complaint c inconsistent with the facts ’ alleged and stated in the answer. Code, § 149, requires tbe defendant to deny tbe material allegations of tbe complaint absolutely, or of any knowledge or information sufficient- to form a belief. Answering on information and belief is not denying on information and belief; and if it were, it would not aid tbe pleading, because such a denial is not authorized by tbe Code.” To tbe same point, see Hackett v. Richards, 3 E. D. Smith, 13; Therasson v. McSpeddon, 2 Hilt. 1; 2 Whittaker’s Pr. 80. Tbe case of Edwards v. Lent, 8 How. Pr. 28, is an authority apparently in conflict with those above. On an examination of tbe date of tbe rendition of tbe opinion, I am inclined to think it must have been given before tbe amendment to tbe New York Code in 1852. Tbe opinion was delivered in 1852, tbe same year of tbe amendment, and no reference is made to it. Tbe fact that tbe verification prescribed in tbe Code provides that tbe affidavit shall state “ that tbe facts stated in tbe pleading are true to tbe knowledge of tbe person making it, except as to those matters which are therein stated on bis information and belief, and as to those matters, that be believes it to be true,” is urged by tbe appellants with considerable force, they claiming that it was contemplated, from tbe verification prescribed, that every pleading in a case might have allegations upon information and belief Tbe answer to tbis is, that tbe verification prescribed by tbe New York Code contains this provision, and yet tbe courts in that State have rendered tbe decisions above referred to. Tbe courts of that State did not consider tbe provisions in tbe section upon verification sufficient to override tbe positive requirements of tbe form of a denial prescribed by section 149 of their Code, and I do not think it sufficient to override tbe requirements of our Code. It is probable that tbe construction I have given to section 56 of our Practice Act works a considerable hardship upon tbe defendants in tbis case, and may work a hardship in many other cases unless tbe section should be amended by our legislative assembly. [41] I must, however, construe the law as I find it and in accordance with wbat I conceive legal principles. The hardship of such a law is a consideration for the legislative assembly and not the courts. There is one other denial of the defendants to be considered, namely: “ And the said defendants have not, and cannot obtain sufficient information upon which to base a belief, as to whether said goods, or any thereof, are or were lost to the plaintiffs, and therefore deny the same.” Taking all of the facts into consideration, presented in the record, and the court may have well considered this denial as sham. The plaintiffs allege that the goods were delivered to the defendants as common carriers. The defendants should know whether or not they delivered said goods to the plaintiff. The only thing that is set forth, that would in any way excuse them from not having this knowledge, is the statement in the verification that the business was transacted by agents. Still the court below may have held that they ought to know enough of the conduct of their agents to have some belief or information as to their doings, and that parties could not shut their ears and refuse to receive information upon a subject of such interest to them and the person who intrusted them with his property. The question of whether a party has presumptive knowledge of a fact stated in his pleadings, must, in some measure, be left to the judgment of the court below. Considering that I have held that the other allegations of the complaint were' not properly put in issue, I cannot see any error in the court below in holding that if all the other allegations of the complaint were admitted, the defendants must have presumptively had knowledge as to whether the plaintiff-had lost any of the goods specified. It is contended that, if all of these denials were sham, still the plaintiff had no.right to judgment without first striking out the answer. In effect, that is the plaintiff’s motion. The first ground for the motion is, “ that the amended answer filed herein is sham and irrelevant.” In New York, the practice of moving for a judgment on a sham or immaterial answer has been sustained, and this court has held that a party might move to strike out an answer that raised no issue, and then for judgment, or for [42] judgment notwithstanding the answer, on the ground that it raised no material issue. Lomme v. Kintzing, 1 Mon. 295. The courts of California have held that where an answer raised no material issue, it would be considered that the complaint was admitted. A defendant cannot present an issue in any other manner than prescribed by the Code. Hence a denial in an answer that does not conform to the requirements of the Code raises no issue. Suppose that the form of raising an issue prescribed in the Code of alleging that the defendant has not and cannot obtain information sufficient to form a belief was stricken out, could it be contended that an issue could still be presented in that manner ? I think not. The point that the record does not show that the court below took proof upon the amount for which he rendered judgment, is now for the first time raised by the dissenting opinion herein. All presumptions are in favor of the proceedings of the court below, and this court will not consider errors of this character, concerning which the defendants took no exceptions in’ the court below, and for which no error is assigned in the record presented to this court, or pointed out in the briefs and arguments of counsel. For these reasons, the judgment of the court below is affirmed, with costs. Judgment affirmed.