Wilson v. Evansville & Cleveland, &c., Railroad

Perkins, J. Suit upon a stock subscription. The complaint alleged that the subscription was made by Willard Ca/rpenter for the defendant, and that the defendant after-, wards ratified it. The defendant answered under oath, denying that he made any subscription of stock. The answer consisted of more than one paragraph. The paragraphs were not numbered. The answer was demurred [511] to, the demurrer sustained, and, no further answer being put in, final judgment was rendered for the plaintiff. L. Q. Be Bruler, for the appellant. O. H. Smith, for the appellees. Section 56, 2 R. S. p. 39,,provides, in subdivision 3, that a defendant may set up as many grounds of defense in his answer as he shall have, but requires that “ each shall be stated in a separate paragraph, and numbered, and clearly refer to the cause of action intended to be answered.” Wherever a party, therefore, assuming that he has different grounds of defense, whether they really amount to such or not, sets them up in separate paragraphs, he should number them; and if he did not, this Court could not say that the Court below erred in sustaining a demurrer to the whole answer. In this case, however, it is plain that the answer does not meet the allegations in the complaint. The latter avers that Willard Carpenter subscribed, and the defendant afterwards ratified. The former asserts that the defendant did not subscribe. It is true, the legal effect of the ratification, if a valid one, would be to make the defendant liable as a subscriber; but that liability, strictly speaking, would arise from the ratification, not the making of a subscription. The answer should have directly met the allegations in the complaint. It impliedly admits them. It is a kind of a negative pregnant. Per Curiam. The appeal is dismissed with costs.