CHAPTER IV. THE ANSWER. 58. Definition and nature of. 61. Denials must be direct and positive. 64. Effect of omission to deny. 65. What may be shown under general denial. 258. Definition and nature of. - Under the Code system, the only pleading on the part of the defendant is either a demurrer or an answer.1 And generally speaking, when any of the matters enumerated by the statute as grounds of demurrer do not appear upon the face of the complaint or petition, the defendant's remedy is by answer. The word "answer" is sometimes used in a general sense, so as to signify any pleading by which an issue, whether of law or of fact, is made or tendered on the part of the defendant.3 In this liberal sense, a demurrer is an answer to a complaint. But demurrer and answer are clearly distinct pleadings under the Code system, the former tendering an issue of law and the latter an issue of fact; 5 and a demurrer can never be held to be included in the term "answer," unless the context or manifest purpose of the term shows that it was so intended. It should also be observed that the word "answer," as used in the Codes of the different States, means an entire answer as a distinct pleading, and not one or more of several defenses constituting the answer. Under the Codes of some of the States, the defendant may demur and answer at the same time to the entire complaint, and also to each cause of action therein stated. But the prevailing doctrine is, that a demurrer and answer to the same cause of action at the same time is not allowable. And in order to ascertain and determine whether a defense is a demurrer or an answer, it is only necessary to ascertain whether it requires that any facts should be proved or not; 10 if the slightest statement of facts is necessary to reveal the defect in the complaint, the defense must be made by answer and not by demurrer."1 1 See N. Y. Code Civ. Proc. 487; Cal. Code Civ. Proc. ? 422. 2 Sec N. Y. Code Civ. Proc. 498; Webb v. Vanderbilt, 7 Jones & S. 4; Zabriskie v. Smith, 13 N. Y. 322. 3 Howell v. Howell, 15 Wis. 55. 4 Broadhead v. Broadhead, 4 How. Pr. 303. 5 Brennan v. Ford, 46 Cal. 7; Kelly v. Downing, 42 N. Y. 71, 77; N. Y. Code Civ. Proc. 963. 6 Kelly v. Downing, 42 N. Y. 77. A demurrer precedes an answer, and cannot be put in after it, without leave obtained to withdraw the answer: Finch v. Baskerville, 85 N. C. 205. 7 Strong v. Sproul, 53 N. Y. 497. S See People v. McClellan, 31 Cal. 101; Wines v. Stevens, 1 Utah. 305, COS. 9 Spellman v. Weider, 5 How. Pr. 5; Munn v. Barnum, 1 Abb. Pr. 231; 12 How. Pr. 563; Von Glahn v. De Rossett, 76 N. C. 292; Davis v. Hines, 6 Ohio St. 473; San Juan etc. Smelting Co. v. Finch, 6 Colo. 223, BOONE PLEAD.-9. 10 Struver v. Ocean Ins. Co. 16 How. Pr. 422. 11 Struver v. Ocean Ins. Co. 16 How. Pr. 422; Dillaye v. Wilson, 43 Barb. 291; Brennan v. Ford, 46 Cal. 7. 259. What to contain, generally. As generally prescribed under Code pleading, the requisites of an answer are: (1) A general or specific denial of each material allegation of the complaint or petition controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. (2) A statement of any new matter constituting a defense or counter-claim, in ordinary and concise language, without repetition.1 The answer should be entitled in the action, specifying the name of the court, of the county, and also the names of the parties, plaintiff and defendant, and this is specifically required by the statute in some of the States. But an answer is not required to contain any prayer for relief, except where affirmative relief is sought, nor any statement as to what the defendant may consider to be the legal effect of the facts he sets up. It is sufficient if the facts which he avers constitute matter either in bar or abatement, and the plaintiff must himself determine, at his own peril, whether the facts are sufficient and sufficiently averred to constitute a defense, either in bar or in abatement. The facts constitute the defense, and misnaming the pleading is immaterial, since it will be tested by the facts, whether it is called by the right name or not. Generally speaking, a defendant should set forth the true nature of his defense in his answer, and in case he does not, he should not be permitted to insist upon it." Under the Code system, only two classes of defense are allowed-the first consisting of a simple denial, and the second, of the allegation of new affirmative matter.8 The answer should either take issue directly on the material allegations of the complaint, or, confessing them, should state distinctly and positively new matter sufficient to avoid them. But it is no objection to an answer, that after taking issue upon the material allegations in the complaint, it alleges, as a defense, matter operating in abatement, or as a perpetual bar.1o 1 See N. Y. Code Civ. Proc. 500; Cal. Code Civ. Proc. 437; Dakota Code Civ. Proc. 118; 2 Iowa Rev. Code (1880) 2655; 2 Ohio Rev. Stats. 5070; N. C. Code Civ. Proc. 100; Minn. Stats. (1878) p. 720,96; Burley v. German Am. Bank, 5 Civ. Proc. R. 172. 2 See 2 Iowa Rev. Code (1880) 2655, subd. 1. Compare Didier v. Warner, 1 Code R. 42. 3 Bridge v. Payson, 5 Sand. 210; Bendit v. Annesley, 42 Barb. 192; 27 How. Pr. 184; Dawley v Brown, 9 Hun, 461. 4 Dawley v. Brown, 9 Hun, 461. Nor is it necessary, after inserting in an answer a statement which shows that the plaintiff ought not to recover, to accompany it with the reasons why he should not recover: Bridge v. Payson, 5 Sand. 210. 5 Dawley v. Brown, 9 Hun, 461. 6 Springer v. Dwyer, 50 N. Y. 19. 7 Walton v. Minturn, 1 Cal. 362; Bernard v. Mullott, 1 Cal. 368. 8 Ladd v. Stevenson, 1 Cal. 18; Piercy v. Sabin, 10 Cal. 22; Glazer v. Clift, 10 Cal. 303; Coles v. Soulsby, 21 Cal. 50; Gould v. Williams, 9 How. Pr. 51. 9 Ladd v. Stevenson, 1 Cal. 18. 10 Bridge v. Payson, 5 Sand. 210; Sweet v. Tuttle, 10 How. Pr. 40; 14 N. Y. 465; Gardner v. Clark, 21 N. Y. 399; Erb v. Perkins, 32 Ark. 428; Bond v. Wagner, 28 Ind. 462; Board of Supervisors v. Van Stralen, 45 Wis. 675; Woody v. Jordon, 69 N. U. 189. Compare Fordyce v. Hathorn, 57 Mo. 120; Hopwood v. Patterson, 2 Oreg. 49. An answer may confess and avoid some averments of the complaint and deny the others: Carter v. Ford Plate Glass Co. 85 Ind. 180; State v. St. Paul etc. Turnp. Co. 92 Ind. 42. 60. Denials, general or specific. -By a general denial is meant a denial in gross of all the allegations of the complaint or petition; a specific denial is a denial applicable only to the particular allegation controverted.? A general and specific denial is not permitted to the same allegation. But it is held that a defendant may admit one or more special allegations, and deny the remainder by a general allegation, when the allegations are so specified that there can be no mistake in ascertaining what is put in issue. Thus, an answer denying "each and every allegation set forth in the complaint, except as herein admitted, qualified, or explained," was sustained as proper.5 But the common form of a general denial is, that "the defendant denies each and every allegation of the complaint," and in this form the denial puts in issue every fact alleged in the complaint. It is also held that a denial of all the allegations which are contained within certain specified folios is good as a general denial. So, a denial in the form, "he says that he denies each and every allegation," is a good general denial.8 1 Wand v. Packard, 13 Cal. 391; Dennison v. Dennison, 9 How. Pr. 246. A verified answer which interposes a general denial to the complaint is tantamount to a plea of the general issue under common-law practice: Thompson v. Erie R. R. Co. 45 N. Y. 468. 2 San Francisco Gas Co. v. San Francisco, 9 Cal. 453. Under the Colorado Code, there is no such thing as a general denial, and a specific denial of each allegation in the complaint intended to be controverted is required: Alden v. Carpenter, 4 Colo. L. R. 430. 3 Blake v. Eldred, 18 How. Pr. 240; Fogerty v. Jordan, 2 Robt. 319, 322. 4 Haines v. Herrick, 9 Abb. N. C. 379. And see McGuiness v. Mayor, 13 N. Y. Week. Dig. 522; Blake v. Eldred, 18 How Pr. 240; Long v. Long, 79 Mo. 644, Smith v. Wells, 20 How. Pr. 158. But se Leary v. Boggs, 3 Civ. Proc. R. 227; Miller v. McCloskey, 9 Abb. N. C. 303; 1 Civ. Proc. R. 259; Hammond v. Earle, 5 Abb. N. C. 105; Clark . Dillon, 2 Civ. Proc. R. 73; 4 Civ. Proc. R. 245; McEncroe v. Decker, 55 How. Pr. 250; Bixby v. Drexel, 9 Reporter, 630; Luce v. Alexander, 17 Jones & S. 202; Thierry v. Crawford, 33 Hun, 366. 5 Calhoun r. Hallen, 25 Hun, 155; Allis v. Leonard, 46 N. Y. 688; 22 Alb. L. J. 28; Parshall v. Tillon, 13 How. Pr. 7; Burley v. German Am. Bank, U. S. Sup. Ct. 5 Civ. Proc. R. 172. But see 5 Čiv. Proc. R. 179, n. 6 Wand v. Packard, 13 Cal. 391; Mattison v. Smith, 19 Abb. Pr. 283; 1 Robt. 706; Kellogg . Church, 3 Code R. 39; 4 How. Pr. 339Thompson v. Erie R. R. Co. 45 N. Y. 474. The mere form of the denials in the answer is not material if they meet and traverse the allegations of the complaint: Morrison v. O'Reilly, 2 Utah, 165. 7 Gassett v. Crocker, 9 Abb. Pr. 39. And see Brown v. Cooper, 89 N. C. 237. Contra, Collins v. Singer Manuf. Co. 53 Wis. 305. 8 Espinosa v. Gregory, 40 Cal. 61; Moen v. Eldred, 22 Minn. 538; Jones v. Ludlum, 74 N. Y. 61; Chapman v. Chapman, 34 How. Pr. 281; Munn v. Taulman, 1 Kan. 254. But see People v. Christopher, 4 Hun, 805; Powers v. Railroad Co. 3 Hun, 285; Arthur v. Brooks, 14 Barb. 533; Smith v. Nelson, 62 N. Y. 286. 261. Denials must be direct and positive. The defend ant, in his answer, may deny the allegations of the complaint or petition, generally, in a short form of denial, |