Felch v. Beaudry

delivered the opinion of the Court. Khodes, C. J., and Temple, J., concurring:

The plaintiff obtained judgment on the pleadings in the Court below.

It is objected here that the practice prevailing in our Courts does not permit a judgment to be entered on the pleadings. If a complaint be itself sufficient, there is no question that the plaintiff may apply for judgment on the pleadings, if the defendant has filed an answer which expressly admits the material facts stated in the complaint; and so when the answer filed leaves all the material allegations of the complaint undenied; this practice is constantly pursued, when denials in verified answers are literal merely, or conjunctive, evasive, or the like. If this be the practice as to answers which insufficiently deny the plaintiff’s allegations, why should not answers, which merely set up new matter in defence, if found substantially insufficient, be subjected to the same practice? The gro.und upon which a motion, made by plaintiff for judgment on the pleadings, proceeds in any case, is that his complaint is sufficient to warrant it, and that the answer presents nothing, either by way or denial or of new matter, to bar or defeat the action.

[$2,000] Los Angeles, (Cal.), April 18, 1868.

Thirty days after date, I promise to pay Noah Felch the sum of two thousand ($2,000) dollars in gold coin of the United States of America, without interest, on condition that the said Noah and Maria Antonia G. de Dominguez de Felch, the wife of said Noah, duly execute, sign, seal and deliver to the subscriber and John G. Downey, a good and valid deed, of even date with these presents, of certain lands, being a part of the Pancho San Pedro (more particularly described in said deed, in which the subscribed and said John G. Downey are parties of the second part, and said Noah and wife are parties of the first part).

(Signed) P. Beaudry.

It is alleged in the complaint that Felch and wife made and delivered to Beaudry and Downey the deed of conveyance in this instrument mentioned, and fulfilled all the conditions therein set forth upon their part. The answer sets out with a denial that Felch is the lawful owner or holder of the instrument which is sued on, and, as is seen, runs to him upon its face.

As we said in the recent case of Frost v. Harford, a de-fence in this form, and which discloses no issuable fact to support it, is merely frivolous.

It is next alleged that the consideration of this express agreement on the part of Beaudry to pay Felch was a conveyance of the separate property of the wife of the latter to Beaudry and Downey, and that Felch is endeavoring to defraud her out of it by recovering it for himself in this action. But this, if true, does not concern the defendant Beaudry in anywise — he is not the trustee of the wife of Felch, nor charged with the duty of protecting her property from injuries committed, or about to be committed, by her husband.

It is next averred that the defendant, before the commencement of the action, had fully paid and discharged the note by payment thereof to the wife of Felch. This is a separate defence and disconnected with any averment that

Tbe answer then avers tbat tbe “ wife ” of Felcb, before tbe commencement of this suit, commenced an action against him to obtain a divorce, and tbat she alleges in her complaint in tbat action tbat tbe money mentioned in tbe agreement set out in tbe complaint here is her separate property; and tbe answer also avers tbat Beaudry, tbe defendant here, is a defendant in tbat action in respect to tbe obligation here sued on, and that tbe divorce suit is yet pending; and pleads its pendency “in bar of recovery in this suit; ” and avers tbat tbe purpose of Felcb in bringing this action is to defraud bis wife, and alleges tbat Felcb is insolvent.

Tbe plea tbat tbe divorce suit is pending is insufficient to bar tbe action here. It is indispensable to such a plea tbat tbe same person should appear to be tbe plaintiff in both actions. In tbe suit for divorce tbe wife of Felcb is tbe plaintiff; in this action Felcb himself is tbe plaintiff. This is fatal to tbe plea.

We are of opinion tbat tbe answer discloses no defence whatever to tbe action, and tbe Court below did not err in granting tbe motion for judgment.

After judgment bad been rendered tbe defendant applied to tbe Court below for leave to amend bis answer. Tbe application was denied, and we cannot say, under tbe circumstances, tbat its.denial involved any abuse of tbe discretion of tbe Court.

The motion for judgment was made August 14th. Tbat motion must then, at all events, bave apprised tbe defendant of tbe defects alleged to exist in bis answer, if be was not aware of them before. He made no application then,

If he intended to abandon his answer and substitute another one in its stead, he should have made his application before judgment was ordered; at least if he wait till after that time we will not disturb the order of the Court below refusing him leave to amend.

Judgment and order affirmed.

By

I concur with Justice Wallace in the opinion that the original answer presented no defence to the action for the reasons stated by him. But, under the circumstances of this case, if the defendant had offered to file an amended answer, containing a valid defence on the merits, I think it would have been an abuse of its discretion if the Court had refused leave to file it. The amended answer, however, which the defendant offered to file was no better than the original. It is clear that either the plaintiff or his wife was entitled to payment from the defendant, and if the defendant, for his own protection, desired to have an adjudication of this point, his only proper course was to file a bill of interpleader against the husband and wife to enable^ the Court to decide, with all the parties before it, which of them was entitled to the fund. But, aside from the mere form of the ■proceeding, it appears from the answer that the defendant and Downey refused to purchase the land unless the husband would unite in the deed, and, as a consideration to-do so, it was mutually agreed that the defendant would pay to him the sum of $2,000. If this money was equitably due to the wife instead of the husband, as between themselves, this is a matter which does not concern the defendant. It is his duty to pay it to the plaintiff, to whom he promised to pay it, unless there was danger that the wife would compel him to pay it a second time; and in that event his only remedy was to bring the money into Court, and, by appropriate proceedings, compel the

I concur in the judgment.

Speague, J., expressed no- opinion.