C. N. Nelson Lumber Co. v. Pelan

DicKinson, J. The court below overruled the demurrer to the answer for the reason that it contained no allegations of new matter, but consisted only of a denial of a portion of the complaint. This decision we affirm. The statute only authorizes a demurrer to “an answer containing new matter, when upon its face it does not constitute a counterclaim or defence.” Gen. St. 1878, c. 66, § 100; Lund v. Seaman’s Savings Bank, 23 How. Pr. 258; Ketcham v. Zerega, 1 E. D. Smith, 553; Rice v. O’Connor, 10 Abb. Pr. 362; Oleson v. Hendrickson, 12 Iowa, 222. The appellant refers, in support of its right to demur, to a remark in the opinion in Morton v. Jackson, 2 Minn. 180, (219,) where it is said, in respect to answers claimed to be frivolous, that “the relief desired in such eases may always be obtained by demurrer.” It is at least doubtful whether this was said with reference to answers consisting merely of denials of the allegations of the complaint; but however this may have been, the effect of a decision cannot be given to the language, for the question presented for decision was only as to whether such an answer had been properly stricken out on motion. Order affirmed.