directing that if the said plaintiffs should fail, within that time, to amend their said complaint, that the same be dismissed, and judgment entered herein in favor of the defendants herein; and a copy of said order having been served on said attorneys, on the day of . . ., 19. ., and more than twenty days having elapsed since such service, and the said plaintiffs having failed to amend their said complaint, as by said order allowed; Now, on motion of J. K., attorney for the said defendants, It is ordered and adjudged, that the complaint herein be, and the same is hereby dismissed, and that the defendants have and recover their costs of the said plaintiffs taxed at . . dollars. By the Court: O. P., Judge. CHAPTER XXI. DEFENSES-ANSWERS IN GENERAL. § 385. General nature of.-If the defendant does not demur, or, having demurred, the plaintiff having thereafter filed and served a proper complaint, his only alternative method of defense is to answer the complaint by matter of fact. In the ordinary sense, an answer means a reply. In pleading it may be a reply which either admits or denies the facts alleged in the complaint, or it may admit, and then avoid the effect of the admission by making a counter statement. In either case the object of an answer is to make an issue. Without an issue no trial can be had, because there is no question of difference between the plaintiff and defendant-in other words, plaintiff asks for nothing which defendant refuses to grant him. Burrill, in his Law Dictionary, defines an answer to be any pleading except a demurrer, framed to meet a previous pleading. The object of an answer is to plainly notify the court and the opposite party of the facts relied upon as a defense, so that the plaintiff may be prepared to meet them if he can. The testimony must then be confined to the allegations. A defense not pleaded cannot be considered, although shown by the evidence. And where a party to a suit has an opportunity to present his defense and neglects to do so, the decree against him is binding in a collateral proceeding. So, a defense should be so pleaded, that, being admitted as pleaded, judgment must go for the defendant, and this rule is especially rigid in pleading fraud or a forfeiture. Each defense must be complete in itself." 3 2 Under the California practice, where the complaint is sworn to, the defendant must deny specifically each allegation in the complaint. But by each allegation is meant each material allegation; for if plaintiff makes averments in his complaint not 1 Knahtla v. Oregon etc. R. R. Co., 21 Or. 142, 27 Pac. 91; Troy Laundry Co. v. Henry, 23 Or. 232, 31 Pac. 484. 2 Wilson v. White, 84 Cal. 239, 24 Pac. 114. 3 Morrill v. Morrill, 20 Or. 96, 23 Am. St. Rep. 95, 25 Pac. 362, 11 L. 4 Greiss v. State Investment etc. Co., 98 Cal. 241, 33 Pac. 195. 5 Weston v. Estey, 22 Colo. 334, 45 Pac. 367. Cal. Code Civ. Proc. § 437. necessary or material to present his cause of action, or if he avers conclusions of law, or sets out evidence, these need not be traversed, for they are not issuable facts, or, if issuable, they are not pertinent to the case. Because plaintiff makes a history of his complaint, there is no reason, necessity, or excuse for the defendant to deny the truth of that history. Matters of inducement in a pleading are immaterial and need not be denied. An affirmative plea seeking to raise a question which has already been put in issue by the complaint and denial thereto, is demurrable. Nor is it proper to seek out the very words of the complaint, and then negative each and every one of them. An issue is not as well or as clearly made by negativing the language of the complaint in terms as by denying the facts expressed by such language. § 386. Answer under the codes. There is a practical uniformity in the code provisions as to the contents of the defendant's answer. The requirements are: 1. A general or specific denial of the material allegations of the complaint controverted by the defendant; 2. A statement of any new matter constituting a defense or counterclaim. In all of the codes it will be observed that the distinction between denials and new matter is preserved. The subjects of counterclaims, and cross-complaints will be treated under separate heads.10 The defendant, when about to make answer to the complaint, inquires: 1. Has any wrong been alleged in the complaint? 2. Does the complaint charge the defendant with the commission of the wrong? 3. Is the defendant liable to the extent alleged in the complaint? 4. Has the defendant a counterclaim? 5. Is the cause of action alleged within the statute of limitations? 6. Did the defendant do the wrong? These inquiries will suggest to the pleader what answer will raise an issue.11 An answer may be a reply which either admits or denies the facts alleged in the complaint, or it may admit, and then avoid the effect of the admission by making a counter-statement. Its object is to raise an issue of fact-to plainly notify the court 7 Fleishman v. Meyer, 46 Or. 267, 80 Pac. 209. 8 Hastings v. Anacortes Packing Co., 29 Wash. 224, 69 Pac. 776. Cal. Code Civ. Proc., § 437; N. Dak. (Levisee's) Rev. Code, § 118; S. Dak. (Levisee's) Rev. Code, § 118; 10 Chs. XXV., XXVI., post. and the opposite party of the facts relied upon as a defense, so that the plaintiff may be prepared to meet them.12 Each defense must be complete in itself. 13 And a defense not pleaded cannot be considered, although shown by the evidence.14 So, also, where a party to a suit has an opportunity to present his defense and neglects to do so, the decree against him is binding in a collateral proceeding.15 Although the mere fact that a defendant has not averred a defense will not deprive him of it if the defense is made good by the plaintiff's proofs.16 A defense should be so pleaded that, being admitted as pleaded, judgment must be given for the defendant." An answer not traversing in material allegation nor confessing and avoiding, but only setting up matter admitted by the complaint is bad.18 § 387. Objections not appearing on face of complaint.When any of the matters enumerated in the codes as ground for demurrer1o do not appear upon the face of the complaint, the objection may be taken by answer; and the demurrer to the complaint having been disposed of, the defendant may make his answer, filing the original with the clerk of the court in which the action is brought, and serving a copy upon the adverse party or his attorney.20 The time within which the defendant must answer is regulated by the codes, and differs in the several states.21 But the time to answer may be extended by the court or judge.22 § 388. Time to answer.-The time to answer in the several states is fixed by the statute of such states, and the practice of the courts in many of them differs from the practice in California. In New York, defendant must answer within the statutory time or such further time as he may obtain by order. 23 In 12 Knahtla v. Oregon etc. R. R. Co., 21 Or. 142, 27 Pac. 91; Troy Laundry Co. v. Henry, 23 Or. 232, 31 Pac. 484. 13 Weston v. Estey, 22 Colo. 334, 45 Pac. 367. 14 Wilson v. White, 84 Cal. 239, 24 Pac. 114. 15 Morrill v. Morrill, 20 Or. 96, 23 Am. St. Rep. 95, 25 Pac. 362, 11 L. R. A. 155. 16 Salisbury v. Ellison, 7 Colo. 167, 303, 2 Pac. 906, 3 Pac. 485, 49 Am. Rep. 347. 17 Greiss v. State Investment etc. Co., 98 Cal. 241, 33 Pac. 195. 18 Cassady v. Clarke, 7 Ark. 123. 19 Cal. Code Civ. Proc., § 430; N. Y. Code, § 448. 20 Cal. Code Civ. Proc., § 465; Oliphant v. Whitney, 34 Cal. 25. 21 See Cal. Code Civ. Proc., § 407, subd. 3. 22 Cal. Code Civ. Proc., §§ 473, 1054, as amended 1895. 23 See N. Y. Code Civ. Proc., §§ 520, 781, 782. Montana, an answer filed after defendant's default for failure to answer has been taken will be stricken from the files, the proper method for defendant being to move to set aside the default, tendering the answer with the motion. 24 In California, an answer filed without leave of court, after the time for answering has expired, but before default has been entered, is not a nullity, but at most an irregularity. The court in its discretion may strike it out or retain it, or permit another to be filed; but plaintiff cannot, as of right, have such answer stricken out. For these purposes defendant is not in default until his default has been actually entered in accordance with the statute.25 If the defendant demurs only, and the demurrer is overruled, the court may allow him to answer, imposing terms in its discretion.20 In reference to the time in which the answer must be filed, courts will take judicial notice of the territorial extent of the jurisdiction and sovereignty exercised de facto by their own government, and of the local divisions of the country into states, counties, cities, towns, etc.27 When a demurrer is interposed and overruled, the question of time to answer and terms are chiefly regulated by the rules and discretion of the court in which the cause is pending.28 For if the demurrer is deemed frivolous, terms will be imposed before answer is allowed. Such a rule is required to prevent demurrer from becoming a means of delay only, and if the court does not fix the time within which answer in such case must be filed, the defendant should answer within the same time as in case of service of copy of the original complaint.20 When the defendant, on motion being decided in his favor, is allowed time to answer until the plaintiff elects or which count of the complaint he will go to trial, the plaintiff should serve a copy of the complaint with the notice of his election.30 And if an answer has been already filed, it may be allowed by order of the court to stand as the answer to such amended complaint, and it shall be treated as if filed when the order is made.31 If the defendant should fail to answer in the time specified in the summons, it is not an unsound exercise of 24 Mantle v. Casey, 31 Mont. 408, 78 Pac. 591. 25 Cal. Code Civ. Proc., § 437; Bowers v. Dickerson, 18 Cal. 420. 26 See Cal. Code Civ. Proc., §§ 432, 472, 473; Maumus v. Hamblon, 38 Cal. 539. 27 People v. Smith, 1 Cal. 9. 28 Thornton v. Borland, 12 Cal. 438; Cal. Code Civ. Proc., §§ 472, 473, 1054; People v. Rains, 23 Cal. 128. 29 People v. Rains, 23 Cal. 128. |