the defendant stands in the shoes of the vendee, is estopped from denying the plaintiff's corporate character, and that an answer putting it in issue is frivolous.137 An answer that the purchasers of an equity of redemption, who had constructive notice of the mortgage by record, had no knowledge or information sufficient to form a belief as to the existence of the mortgage, was stricken out as evasive; 138 and a similar allegation as to matters of record, of which the pleader could advise himself, was treated as frivolous,139 and as insufficient to raise an issue.140

Many things readily suggest themselves as frivolous-as, a second demurrer for the same cause, when one had been overruled; or, an answer alleging new matter of defense obviously insufficient ―as, the statute of frauds when the contract sued on is obviously not within it; or, the statute of limitations, when the time has not expired; or, a promise, without consideration, to discharge the obligation in suit; or, where the pleading is irrelevant; or, where there is a traverse of immaterial matter-as, time, or place, or value -when they are not material. Its character must not be doubtful. It must be "one so clearly and palpably bad as to require no argument or illustration to show its character, and which would be pronounced frivolous and indicative of bad faith in the pleader on bare inspection." 141

If the pleading is put in in good faith, if there is any question as to its sufficiency, it should not be treated as frivolous.112 "The fact that an answer is insufficient in form and substance, does not neces

187 Jackson Sharp Co. v. Holland, 14 Fla. 384; made while the Florida Code was in force.

188 Hathaway v. Baldwin, 17 Wis. 616.

139 City of Milwaukee v. O'Sullivan, 25 Wis. 666; Mills v. Town of Jefferson, 20 Wis. 50; State v. Richmond, 3 Mo. App. 572.

140 Id. But the recovery of a judgment against the defendant is held in California not to be presumptively within his knowledge, and he may traverse it upon information and belief. Vassault v. Austin, 32 Cal. 597.

141 Allen, J., in Strong v. Sproul, 53 N. Y. 497; Cook v. Warren, 88 N. Y. 37. See, also, Youngs v. Kent, 46 N. Y. 672; Boylston v. Crews, 2 S. C. (N. S.) 422; Cottrill v. Cramer, 40 Wis. 555.

142 [Wise v. Gessner, 47 Hun, 306; Cook v. Warren, 88 N. Y. 37; Metzger ▼, Metropolitan El. Ry. Co., 67 Hun, 648, 21 N. Y. Supp. 676.]

sarily determine that it is frivolous," 143 and an answer, in an action for libel, admitting the proprietorship of the paper, but denying that the libelous article was published with the defendant's knowledge or consent, and that any employee had authority to publish it, is held not to be frivolous.144 A defective counter-claim cannot be treated as frivolous or irrelevant, although it may be subject to a motion to make it more definite, or may be demurrable.145 Yet, an answer of new matter, which although it may constitute a good cause of action contains neither matter of defense nor matters which constitute a counter-claim, will be stricken out as irrelevant; 146 and matter of estoppel, if pleaded when not available as a defense, will be stricken out as irrelevant and redundant,147 and, so, when relevant and irrelevant matter is so mingled in an answer that they cannot be separated, the whole will be stricken out.148

143 Youngs v. Kent, 46 N. Y. 674; Boylston v. Crews, supra; Erwin v. Lowery, 64 N. C. 321; Swepson v. Harvey, 66 N. C. 436.

144 Samuels v. Evening Mail Ass'n, 52 N. Y. 625. As to pleadings held not to be frivolous, see Farmers & Millers' Bank v. Sawyer, 7 Wis. 379; McConihe v. McClurg, 13 Wis. 454; Clapp v. Preston, 15 Wis. 543; Eaton v. Gillet, 17 Wis. 435; Cobb v. Harrison, 20 Wis. 625; Howland v. Supervisors of Kenosha County, 19 Wis. 247. Courts do not always clearly distinguish between pleadings sham or false, and those that are frivolous. Thus, a denial of knowledge or information, when such knowledge is clearly within the reach of the defendant, is false, and it is also evasive and frivolous. In either case it should be stricken out, and it may not greatly matter what it is called. Cases similar to Hathaway v. Baldvin, and City of Milwaukee v. O'Sullivan, supra, are sometimes said to show false pleading. Thus, in Lawrence v. Derby, 24 How. Pr. 133, the complaint charged an arrest by means of a writ sued out by defendant, and the latter alleged want of knowledge or information sufficient to form a belief in regard to the matter. The defendants, it was said, must know whether they caused the writ to be issued, and, without any affidavit by the plaintiff, it was held to be apparent that the answer was "sham or false;" and so with other cases cited in the next section.

145 Fettretch v. Mackay, 47 N. Y. 426. In Missouri, as frivolousness in an answer is expressly named, the motion might be entertained.

146 Kurtz v. McGuire, 5 Duer, 660.

147 Ridenour v. Mayo, 29 Ohio St. 138.

148 Clough v. Murray, 19 Abb. Pr. 97. In this case it did not appear whether the answer was put in as a defense or a counter-claim, and it was held to be neither.

§ 422. Sham Pleading-Defined-Illustrations-Remedy.

False pleading-one good in form, but false in fact [and interposed for delay]-is called sham pleading.149 A sham plea under the common law system, is subject to be stricken out upon motion; 150 but if the defendant makes affidavit of the truth of his plea, or a general affidavit of merits, the motion to strike out will be overruled.151 The Practice Codes of New York, Indiana,152 Wisconsin, North Carolina, South Carolina, Kentucky, Iowa, California, Minnesota, Oregon and Colorado provide for striking out sham answers or defenses; and, while the subject is not named in those of the other Code states, it is not believed that the common-law practice is hence abolished.15 The New York Court of Appeals recognizes the statutory authority as preserving the old power and holds that, even when the pleading is verified, if clearly shown to be false, it should be stricken out.

153

It may be said that a defendant has a right to a regular trial upon

149 [Struver v. Ocean Ins. Co., 9 Abb. Pr. 23; Clark v. Jeffersonville, M. & I. R. Co., 44 Ind. 248; Gortorfs v. Taaffe, 18 Cal. 385.]

150 1 Chit. Pl. 541 et seq.; Oakley v. Devoe, 12 Wend. 196; Bowen v. Bissell, 6 Wend. 511.

151 Tucker v. Ladd, 4 Cow. 47; Brewster v. Hall, 6 Cow. 34.

152 [Rev. St. Ind. § 382; Smith v. Webb, 5 Blackf. 287; Beeson v. McConnaha, 12 Ind. 420. It has been held in New York that a general denial cannot be stricken out as sham. Wayland v. Tysen, 45 N. Y. 281; Thompson v. Erie Ry. Co., Id. 468; Busk. Pr. p. 190; Moyer v. Brand, 102 Ind. 301, 26 N. E. 125. But it would seem that, if the party had no defense at all, his general denial would clearly be a sham pleading.]

153 Code Civ. Proc. N. Y. § 538. The usual phrase is "sham and irrelevant answers," etc., but the new Code leaves out the word "irrelevant," inasmuch as such answers may be treated as frivolous. Code Civ. Proc. Ind. § 77 (Rev. St. 1881, § 382); Rev. St. Wis. 1871, c. 125, § 15 (Rev. St. 1878, § 2682); Code Civ. Proc. N. C. § 104 (Code 1883, § 247); Code Civ. Proc. S. C. § 173; Bullitt's Code Ky. § 113; Code Iowa 1873, § 2707; Code Civ. Proc. Cal. § 453; Gen. St. Minn. 1878, "Civil Actions," § 99; Code Civ. Proc. Or. § 74; Code Proc. Colo. § 61 (Code Civ. Proc. Colo. 1883, § 65).

154 Conn. Pr. Act, § 10, inflicts penalties for "allegations or denials made without reasonable cause and found untrue" The Arkansas Code makes a special provision as to false defenses to actions upon written instruments. Mansf. Dig. 1884, § 5074.

the issues made, or new matter pleaded, and that the truth of the facts cannot be decided upon ex parte affidavits. When there is any doubt as to the truth of the pleading, this objection is unanswerable; but, in an early case, the court says: "The true answer to the objection is that the right of the defendant to a trial by jury depended upon a real issue to be tried; that the court had power to determine whether there was such an issue, or whether the apparent issue was fictitious and sham; not to try the issue if there was not one in truth as well as one in form; and that the order decides, on most satisfactory proof supporting it, that the defense was destitute of truth and substance and presented no real issue." 1 In another case, a defense upon information and belief was stricken out as false, upon the positive affidavit of the plaintiff, where the subsequent affidavit of the defendant gave insufficient reasons for making the defense.158

99 155

The New York cases do not agree in respect to the power to treat simple denials as sham, it being held in some that the power was but a continuation of that formerly exercised, and that a sham plea was a special plea setting up new matter and tendering a fictitious issue, while, in other cases, all defenses evidently false are treated as sham, whether denials or whether they set up new matter. The former seems to be the prevailing view,157 and answers will not be treated as sham unless new facts are pleaded which on their face constitute a defense. The Minnesota Supreme Court supports motions to strike out sham denials 158 and sham answers of new matter, whether verified or not.1 In the Supreme Court of Indiana, it is held that where there are no facts upon the record, or within the judicial knowledge of the court, showing the falsity of an answer valid on its face, it should not be stricken out upon affidavit

159

155 Strong, J., in People v. McCumber, 18 N. Y. 315. 156 Kay v. Whittaker, 44 N. Y. 565.

157 See Farmers' & Mechanics' Bank v. Smith, 15 How. Pr. 329; Claflin v. Zaroslauski, 64 Barb. 463; Wayland v. Tysen, 45 N. Y. 281; Thompson v. Erie Ry. Co., 45 N. Y. 468. It had formerly been held that denials could be treated as sham, as in Manufacturers' Bank v. Hitchcock, 14 How. Pr. 406; People v. McCumber, 18 N. Y. 315, and other cases, but they have been overruled.

158 C. N. Nelson Lumber Co. v. Richardson, 31 Minn. 267 [17 N. W. 388]. 159 Barker v. Foster, 29 Minn. 166 [12 N. W. 460].

that it is untrue.100 The contrary New York practice is admitted, but the court deems it better not to listen to affidavits and counteraffidavits concerning the bona fides of the defense.161 In California an unverified plea of payment, upon affidavit showing its falsity, with no counter-affidavits, is held to be a sham answer under the statute, to be stricken out on motion."

162

It should be noted that, whether the answer be sham or frivolous, a plaintiff who comes into court with a pleading radically defective, can take no advantage of the fact. He can neither move to strike out, nor for judgment.163 As in demurrer, every move on his part calls the attention of the court to the defects of his own pleading.

160 Brown v. Lewis, 10 Ind. 232.

161 But it is held in one case that where a defendant, by his answers to interrogatories, concedes his answer to the complaint to be false, it will be struck out as sham. Beeson v. McConnaha, 12 Ind. 420. Contra, Boggess v. Davis, 34 Ind. 82, and Mooney v. Musser, Id. 373, where it is held that the answer to interrogatories can only be used on the trial as evidence.

162 GORTORFS v. TAAFFE, 18 Cal. 385. The court adopts a definition given in a former case, that "a sham answer is one good in form, but false in fact, and not pleaded in good faith." This definition is adopted in Foren v. Dealey, 4 Or. 92. The doctrine of Wayland v. Tysen, 45 N. Y. 281, as to treating a de nial as sham, is adopted in Fay v. Cobb, 51 Cal. 313. The distinction be tween sham and irrelevant, etc., answers is thus given by Brady, J., in STRUVER v. OCEAN INS. CO., 9 Abb. Pr. 23: "A sham answer is one that is false in fact; a pleading is irrelevant which has no substantial relation to the controversy between the parties to the action; and a frivolous answer is one which assuming its contents to be true presents no defense to the action." This is approvingly quoted in CLARK v. JEFFERSONVILLE, M. & I. R. CO., 44. Ind. 248; and in Howell v. Ferguson, 87 N. C. 113. The re visers of the New York Code of 1876, concede that an irrelevant pleading is frivolous. The learned judge in Clark v. Jeffersonville, M. & I. R. Co., very properly goes on to say: "An answer, however, which is so framed that it does not set up a valid defense, but which states facts, which may, by being properly averred, constitute a defense, will not be struck out as sham, irrelevant or frivolous, but it may be answered to." Says Barrett, J., in Kiefer v. Thomass, 6 Abb. Pr. (N. S.) 42: “To strike out an answer as sham, it is not enough that the court should perceive but little prospect of a result favorable to the defendant, nor even that the plaintiff's ultimate success should, upon the affidavits adduced, appear to be indubitable; the answer must be false in the sense of being a mere pretense set up in bad faith and without color of fact."

163 Van Alstyne v. Freday, 41 N. Y. 174.