Tharin v. Seabrook

The opinion of the Court was delivered by Willard, A. J. The first question to be considered arises upon the motion of the plaintiff “for judgment on the pleadings in this case because the answer in its sixth and seventh articles is sham, and irrelevant and frivolous as to the residue thereof.” Sham and irrelevant answers and defenses may be stricken out on motion. — Code, § 175. In such cases the motion should be to strike out, and not in terms for judgment. Irrelevancy in a pleading is a question that arises on the face of the pleading in the nature of a demurrer to that part of the pleading alleged to be irrelevant. The objection to sham defenses ordinarily presents a question of fact for the Court, to be determined on affidavits, or in such manner as the Court may direct. If the pleading is manifestly false, and interposed to delay or defeat the plaintiff’s action, the Court will strike it out. This power should be sparingly used, and only in eases free from doubt. Where any portion of a pleading is stricken out; the residue of the pleading stands; and, unless the Court authorizes amendment, the cause proceeds upon such pleadings. The objection of frivolousness arises under Section 270 of the Code: Where the entire pleading, either a demurrer, answer or reply, is manifestly, and from matter appearing on its face, a mere contrivance to prevent the entry of judgment previous to the cause coming up for a formal hearing or trial. In that case the Court, on motion, gives judgment at once. But in order to demand such judgment, the objection of frivolousness must extend to and embrace [118] the whole pleading objected to, so that nothing is left of the pleading that can entitle the party to a trial. Paragraph 6 of the answer certainly contains matter that is entirely irrelevant. Neither argumentative nor rhetorical matter should be introduced into a pleading, but merely facts capable in their nature of being affirmed and denied, and of being established by legal proofs. The facts should be systematically arranged, and in the complaint or counter claim the proper legal conclusions from them should be embodied in the nature of the judgment demanded. It is quite immaterial, in point of law, whether the persons charged by the plaintiff with official misconduct occupied high or low positions. The only question for the Court is, whether the charges are material and true. In other respects, however, the sixth and seventh paragraphs contain matter that is material. They deny the knowledge of certain facts alleged by the complaint as material to the cause. The plaintiff objects that the answer states that the defendant “has no knowledge.” This is a good denial. The Code permits the party to state that he has no knowledge sufficient to form a belief. This implies some knowledge, but not sufficient to form the ground work for a prudent man to act upon. The defendant goes beyond the requirement of the Code, and, instead of denying knowledge of sufficient certainty to bind his conscience, he denies all knowledge. The greater includes the less, and the denial must be regarded as full and complete. Under the circumstances, the Court could not properly strike out the whole of the sixth and seventh paragraphs. As it regards the irrelevant matter contained in paragraph 6, it does not appear that the plaintiff was prejudiced by it, and, therefore, no ground exists for objecting to the refusal of his motion. There was no ground for the motion for judgment on account of the frivolousness of the answer. Although there are many things in both the complaint and answer that will be found to have no important bearing on the real issues, yet there is an issue raised distinctly by the pleadings, and that is sufficient to defeat the motion for judgment on the ground of frivolousness. It is only necessary to point out a single ground of defense as sufficient to bar the plaintiff’s demand. The election pleaded by the defendant is such an averment. The fact that such election was held at a time different from that required by the general ordinance does not invalidate it, as the same authority that passed the ordinance [119] ordered the election. If such order was in contravention of-the ordinance, it must be regarded as repealing it to the extent that the two were inconsistent with each other. The second question arises on an appeal from the order requiring the plaintiff to file security for costs under Section 449 of the Code of Procedure. The present case is one within Section 449. It is brought by a person having an interest in an alleged and lawful holding of a corporate office and prosecuted in the name of the State, the name of such party in interest being joined therewith. Section 449 makes it the right of the Circuit Court in such cases to demand security for costs from the party thus using the name of the State. The precise ground upon which the Circuit Judge granted the order is not stated in the brief, and we cannot, therefore, say from the record before us whether the discretion of the Court was exercised on sufficient grounds in point of fact. The appeal should be dismissed. Moses, C. J., and Wright, A. J., concurred.