Neilson v. Title Guaranty & Trust Co.

BENSON, J. 1. From the foregoing statement of facts, it appears that the court made and entered two orders requiring the defendants Moody and Howard to make their answer more definite and certain. We shall refer only to the one made on July 3d, as that, being the later, superseded the earlier mandate. The [254] plaintiff was not entitled to this order, and it was error to make it, since the allegation of partnership and the interests of the partners therein is clear and explicit and the additional details demanded, if of any value, are merely evidentiary: Multnomah County v. Willamette Towing Co., 49 Or. 204 (89 Pac. 389). 2. Even if the order had been a proper one, it was error to strike the answer from the files for a failure to make the required amendment, for the defendants were not then in default, since the order itself directs that the amendment shall be made within five days from the service upon them of the order, and such service has never been had. 3. The defendant Moody should have been permitted to amend his answer by admitting the allegations of paragraph XI of the complaint. It does' not require .an affidavit to disclose the fact that this denial was unintentional. A mere reading of the further and separate answer establishes that fact beyond controversy. It thus appears that the cause has never been tried upon any issue joined between the real adversaries herein, and the record is so incomplete that it must be sent back in order that the answer of the defendant, Moody, may be amended, and that replies may bé filed to the affirmative matter therein. It is doubtful whether the judgments upon which the claims of the plaintiff and defendant Title Guaranty & Surety Company are based, are valid and of sufficient force to support a decree, but, in the first instance, that question should be determined by the trial court. The cause is remanded for further proceedings not inconsistent herewith. ■Reversed With Directions. McBride, C. J., and Burnett and Harris, JJ., concur.