Mathews v. Pufall

SiebbcKer, J. Tbe complaint is in tbe usual form in foreclosure actions, stating tbe amount now due and payable, ■and alleging tbe fact that tbe plaintiffs “are now tbe lawful [656] owners and holders of the said note and mortgage.” The answer admits the execution of the note and mortgage, that no part of the note hasr been paid, and alleges that the defendants “have not sufficient information or knowledge to enable-them to form a belief as to whether or not plaintiffs are the lawful owners and holders of the note and mortgage, and therefore deny the same.” Plaintiffs’ motion to strike out the answer as frivolous and for judgment was granted. A stay was ordered, but before the expiration of the stay the defendants excepted to the order granting the motion. Thereupon the court entered an order striking out the answer as-frivolous and ordering judgment in favor of the plaintiffs. The facts alleged show that the defendants were informed of all the facts as to plaintiffs’ ownership of the note and mortgage at the time of their execution and delivery by defendants to the plaintiffs. The pleadings in the case allege-no fact tending to show that there has been any transfer or-change of ownership of the note and mortgage. The allegations that the plaintiffs were the original owners and are now the owners and holders of the note and mortgage presumptively show that no change in the ownership of the note and mortgage has taken place since their delivery to the plaintiffs,, and their ownership thereof must be assumed to continue. A denial of plaintiff’s ownership on insufficient knowledge or-information to form a belief cannot be resorted to when the facts alleged in the complaint must of necessity be within the defendants’ personal knowledge. If the defendants had alleged, in connection with such a denial, facts tending to show that the defendants were unable to obtain knowledge or information sufficient to form a belief as to whether or not the-note and mortgage had been transferred by the plaintiffs before action was commenced, then this form of denial could have been employed by them. But no such facts are alleged' by them, and hence they must be held to have personal knowledge of the fact of the ownership of the note and mortgage657 wbicli they attempt to deny. Under tbis state of tb,e pleadings tbe court properly struck out tbis portion of tbe answer as evasive and frivolous. Sec. 2681, Stats. (1898) ; Hathaway v. Baldwin, 17 Wis. 616; Milwaukee v. O'Sullivan; 25 Wis. 666. By the Court. — Tbe judgment appealed from is affirmed.