Majority
p. 660Miln v. Vose and others. October 25, 1851.
Headnote
It is no objection to a motion to strike out an answer as sham and insufficient, that the plaintiff has obtained an order for time to reply.An answer that is sworn to positively cannot be stricken out as sham.
Neither will it be stricken out as insufficient, unless it be so utterly frivolous that the plaintiff ought not to be put to his demurrer.
This was a motion to strike' out the answer of the defendants, as a sham and insufficient answer, and for judgment in favor of the plaintiff, founded on the pleadings, and an affidavit by the plaintiff, that he had no previous knowledge of the defence set up in the answer, and that he was informed and believed that the alleged facts set up as a defence are not true.
The plaintiff is an indorsee of a promissory note made by the defendants, and the complaint is in the usual form. The defence set up in' the answer is, that the note was given to one Angier in payment of goods sold by him to them by sample and shipped to California; that when the goods arrived at California, they were found not to correspond in quality with the sample, and that the defendants sustained damages by reason of such want of correspondence, to an amount stated in the answer, which amount they claim to have deducted from the sum due on the note. The answer was verified by the defendants.
Jas. W. White, for the plaintiff.
H. H. Stuart, for the defendants.
(with the concurrence of all the Justices.) — A preliminary objection was made by the defendants’ counsel, viz., that the plaintiff had obtained time to reply, and that it was too late therefore to move to strike out the answer. It has been
p. 661
held by this court, that a party wbo had replied to an answer could not move to strike out any part of it as irrelevant or redundant. (Corlies v. Delaplaine, 2 Sand. S. C. R. 680.) The 43d rule of the supreme court requires such a motion to be noticed before demurring or answering the pleading; and within twenty days from the service thereof. But a motion to strike out an answer altogether is different. I see no objection to its being made at any time before trial. If the answer is false or frivolous, the time of the court and jury ought not to be taken up in hearing it.
The answer in this case cannot be struck out, as sham, because itis sworn to. (Mier v. Cartledge, 4 How. Pr. R. 115; Maury v. Van Arnum, 1 Hill, 370 .) Neither can it be stricken out as insufficient. The proper course is for the plaintiff to demur, unless it is so utterly frivolous that he ought not to be put to his demurrer. (White v. Kidd, 4 How. Pr. R. 68.) I do not think that this answer is of such a character, and for these reasons the motion should be denied.