Winfield Land & Trust Co. v. Burger

Opinion by Strang, C.: Action on a contract to enforce payment of certain subscriptions, which were in writing and attached to the petition in the ease. A demurrer was filed to the petition of the plaintiff, and sustained by the court. An amended petition was then filed and a general demurrer was interposed thereto. This demurrer was overruled. An answer was then filed stating some five different grounds of defense, the first of which was a general denial. The plaintiff replied to the second ground of defense; filed a motion requiring the defendant to separately state and number his defenses set up in his third count,''and a demurrer to the fourth and fifth grounds of defense. This motion and demurrer were both overruled. The defendant then filed his motion asking for a judgment on the pleadings, because there were no replies to the third, fourth and fifth grounds of defense. The plaintiff, however, with leave of court, replied thereto. Afterward, when said cause came on for a hearing, the defendant moved again for a judgment on the pleadings, which motion was sustained by the court. Motion for new trial was overruled, and the plaintiff brings the case here for review, assigning as grounds for reversing the judgment of the court below the rulings of the court on the demurrers to the fourth and fifth grounds of defense set up in the answer of the defendant, and also the action of the court in rendering judgment for the defendant on the pleadings. The first question discussed by the plaintiff in its brief relates to the action of the court in entering judgment in favor [236] of the defendant on the pleadings. The defendant, in the fifth count of his answer, alleges that the plaintiff had no-authority to carry out the stipulations of the two subscriptions sued on, and, as a part of said count, attached a copy of the charter under which the plaintiff had its existence. The reply to this count was not verified, and the court held that, as a want of authority was alleged and not denied under-oath, such want of authority must be taken as true, and therefore the plaintiff’s action must fail. In this action of the court it seems to have confounded the-allegation of a want of authority with an allegation of authority, and applied the statutory rule with respect to the latter allegation to the former. The statute provides that an-allegation of authority in a pleading must be taken as true unless denied under oath; but we do not understand that any such rule prevails in respect to an allegation of a want of authority. Indeed, this court held, in Railroad Co. v. Walz, 40 Kas. 433, that an allegation of the non-existence of authority is not to be taken as true because the denial of the same is not verified. It follows that the court erred in rendering judgment for the defendant on the pleadings. This error necessitates a reversal of the judgment, and we will not consider a further question in the case. It is recommended that the judgment of the district court be reversed, and remanded for new trial. By the Court: It is so ordered. All the Justices concurring.