Majority
p. 647[L. A. No. 8890. Department One. December 15, 1927.] ELSBETH SCHUSTER, Appellant, v. EMMA A. WILLIAMS, Respondent.
Headnote
[1] Pleading — Denial of Indebtedness in Answer — Admission in Counterclaim.—Where the answer denies the allegations of the complaint, in an action to recover upon an indebtedness, any admission in that regard in defendant’s counterclaim does not impair the denials in the answer, and a motion for judgment on the pleadings is properly denied.(1) 31 Cyc., p. 608, n. 53.
1. See 21 Cal. Jur. 238.
APPEAL from a judgment of the Superior Court of Los Angeles County. John L. Hudner, Judge Presiding. Affirmed.
L. V. Beaulieu for Appellant.
Lawler & Degnan for Respondent.
There is no merit in this appeal. Appellant claims that the court erred in denying her motion for judgment on the pleadings. [1] This motion was' based upon the ground that the answer admitted the indebtedness set forth in the complaint, and to recover which the action was instituted by plaintiff. The answer denies in apt language the allegations of the complaint. It is contended,
p. 648
however, by appellant that respondent in a counterclaim admitted that she was indebted to appellant in the sum demanded by the appellant. On account of what is undoubtedly a typographical error in said counterclaim it may be susceptible of such a construction. This, however, cannot avail the appellant. As defendant had in her answer denied that she was indebted to plaintiff in any sum whatever, any admission she may have made in her counterclaim did not impair these denials of her answer. The motion for judgment on the pleadings was therefore properly denied (Cass v. Rochester, 174 Cal. 358 [ 163 Pac. 212 ]; Botto v. Vandament, 67 Cal. 332 [ 7 Pac. 753 ]).
Preston, J., and Seawell, J., concurred.
Cases cited
- Cass v. Rochester 174 Cal. 358 p. 648
- Botto v. Vandament 67 Cal. 332 p. 648