stated in the complaint will be deemed admitted. 104 Conclusions of law need not be denied.105 A denial that the defendant became or was lawfully bound by judgment declared on is merely a denial of a conclusion of law.106 Nor is it a denial in an action for the possession of personal property to allege that the defendant did not at any time wrongfully take and detain the property from the plaintiff;107 or in ejectment that the defendant did not wrongfully and unlawfully dispossess the plaintiff. This is an admission rather than a denial of the dispossession.108 A mere denial of indebtedness is insufficient;109 so, also, of an answer which without denying any fact stated in the complaint, merely says that "the defendant denies that the plaintiff is entitled to the money demanded";110 and an averment that "the plaintiff is not the real party in interest, nor is he an executor.

99 111

A denial which is in itself a conclusion of law raises no issue, as where an answer states in general terms that a municipal ordinance is illegal and void.112 Where, however, the allegation of the complaint is couched in the form of a conclusion of law a denial in the same form will be permissible and is efficient for all purposes.113 For a complaint is not open to the objection that it does not state facts sufficient to constitute a cause of action merely because it contains a conclusion of law.114

§ 417. Negative pregnant.-The rules of pleading under the code are intended to preclude evasion and to require a denial of every specific averment in a sworn complaint, in substance and in spirit, and not merely a denial of its literal truth;115 and whenever the defendant fails to make such a denial, he admits the aver

Pac. 767; Hoopes v. Meyer, 1 Nev. 433.

104 Nelson v. Murray, 23 Cal. 338. 105 Kidwell v. Ketler, 146 Cal. 12, 79 Pac. 514; Zorn v. Livesley, 44 Or. 501, 75 Pac. 1057.

106 People v. Supervisors, 27 Cal.

655.

107 Richardson v. Smith, 29 Cal. 529.

108 Busenius v. Coffee, 14 Cal. 93; Lay v. Neville, 25 Cal. 549.

109 Gale v. James, 11 Colo. 542, 19 Pac. 446; Lake v. Steinbach, 5 Wash. 659, 32 Pac. 767.

P. P. F. Vol. I-17

110 Drake v. Cockroft, 1 Abb. Pr.

203.

111 Russell v. Clapp, 3 Code Rep. 64.

112 People v. Supervisors, 27 Cal. 655; Monroe v. Fohl, 72 Cal. 568, 14 Pac. 514; Richards v. Dower; 81 Cal. 44, 22 Pac. 304; Balfour v. Davis, 14 Or. 47, 12 Pac. 89.

113 Morrow v. Cougan, 3 Abb. Pr. 328; Wager v. Ide, 14 Barb. 468; McKnight v. Hunt, 3 Duer, 615. 114 Livingston V. Lovgren,

Wash. 102, 67 Pac. 599.

115 Estee's Pl. & Pr., § 3147.

27

ment.116 As a general rule, a denial in the precise language of the complaint is not good, but is a "negative pregnant," which is often held to admit a material part of the averment.117 And it is now the settled law that where the defendant denies the plaintiff's averments in a verified complaint as a whole and as conjunctively stated, it is alike in violation of the principles of commonlaw pleading as well as the express direction of the code provision.118 The denial should be in the disjunctive, although the allegations of the complaint are stated in the conjunctive.119 Thus where a complaint consists of several clauses or propositions connected by the copulative conjunction "and," a denial of the entire allegation is evasive, and insufficient; each proposition should be separately denied.120 Even where several allegations of a complaint are not connected by the conjunction "aud," a denial of these allegations conjunctively does not amount to a denial of the allegations to which the defendant professes to respond.121 It is unnecessary to say that an answer which denies in ipsis verbis the allegations of the complaint is open to the objection that it is evasive.122 Thus where an answer denied the allegations of indebtedness as to time, amount, or work, it was held that it raised no material issues.123 And where it was alleged that the defendant "wrongfully and unlawfully seised and took into his possession said property," and the denial was that "he wrongfully and unlawfully seised and took said property into his possession" it was held that the taking was not specifically denied and was therefore to be deemed admitted.12 124 In answer to an alle

116 Blankman v. Vallejo, 15 Cal. 638; Castro v. Wetmore, 16 Cal. 380; Higgins v. Wortell, 18 Cal. 333; Morrill v. Morrill, 26 Cal. 292; Camden v. Mullen, 29 Cal. 564; Toland v. Mandell, 38 Cal. 30; Doll v. Good, 38 Cal. 287; Westbay v. Gray, 116 Cal. 663, 48 Pac. 800; Power v. Gum, 6 Mont. 9, 9 Pac. 575; Stewart V. Budd, 7 Mont. 579, 19 Pac. 221.

117 Bradbury v. Cronise, 46 Cal. 287; Moser v. Jenkins, 5 Or. 448; Rock Springs Coal Co. v. Salt Lake Sanitarium Co., 7 Utah, 161, 25 Pac. 742; Dillon v. Spokane County, 3 Wash. T. 498, 17 Pac. 889.

118 Estee's Pl. & Pr., § 314. 119 Reed v. Calderwood, 32 Cal. 109; Burke v. Caruthers, 31 Cal. 467.

120 More v. Del Valle, 28 Cal. 170; Westbay v. Gray, 116 Cal. 663, 48 Pac. 800; Mulcahy v. Buckley, 100 Cal. 484, 35 Pac. 144.

121 Fitch v. Bunch, 30 Cal. 208, Leroux v. Murdock, 51 Cal. 543; State v. Board, 53 Neb. 771, 74 N. W. 254.

122 Caulfield v. Sanders, 17 Cal. 569; Higgins v. Wortell, 18 Cal. 331; Landers v. Bolton, 26 Cal. 393; Scovill v. Barney, 4 Or. 290; James v. McPhee, 9 Colo. 486, 13 Pac. 535; Blankman v. Vallejo, 15 Cal. 638.

123 Caulfield v. Sanders, 17 Cal. 569.

124 Woodworth V. Knowlton, 22 Cal. 164; Richardson v. Smith, 29 Cal. 531,

gation that an act was "wrongfully and maliciously done" a denial that it was "wrongfully and maliciously done" does not put in issue the doing.125 Likewise, where a complaint avers that defendant wrongfully broke down plaintiff's flume, an answer denying that the defendant wrongfully broke down the flume is an admission that defendant broke it down, and is a denial only as to the wrongful nature of the act.1

126

127

§ 418. Negative pregnant-Continued. As stated above, a denial in the precise language of the complaint is often held to admit a material part of the averment.1 Thus, a denial that the defendant "wrongfully and unlawfully entered upon the premises, closed the window," is an admission that he closed the window therein.128 So in replevin, to recover possession of a city warrant which the plaintiff alleges came into his hands by indorsement, an answer alleging "that whether said warrant came into the hands of the plaintiff as alleged, this defendant has no knowledge or information sufficient to form a belief, and he, therefore, denies the same," is an insufficient denial, for the reason that it constitutes a negative pregnant.129 So an allegation in an answer, “that each and every of four separate causes of action set forth in the complaint did not accrue within six years,' contains a negative pregnant, and is bad pleading. 130

But a negative pregnant allegation in an answer, admitting by implication a material allegation of the complaint, does not prevent an express denial of such fact from putting it in issue.131 An answer averring that "the remaining part of said paragraph is so intermingled with truthful and untruthful declarations that it is impossible to further segregate said allegations, and therefore defendant denies each and every part of said paragraph, excepting that which is heretofore admitted to be true," was not

125 Kinsey v. Wallace, 36 Cal. 462. 126 Feely v. Shirley, 43 Cal. 369; Larney v. Mooney, 50 Cal. 610.

127 See Rock Spring Coal Co. v. Salt Lake Sanitarium Co., 7 Utah, 158, 25 Pac. 742; Dillon v. Spokane County, 3 Wash. T. 498, 17 Pac 889; Argard v. Parker, 81 Wis. 581, 51 N. W. 1012; Bradbury v. Cronise, 46 Cal. 287; Lawrence v. Cabot, 9 Jones & Sp. 122; Moser v. Jenkins, 5 Or. 448; Caldwell v. Cald

well, 45 Ohio St. 520, 15 N. E. 297.

128 Larney v. Mooney, 50 Cal. 610. 129 National Bank v. Meerwaldt, 3 Wash. 630, 36 Pac. 763. See Collins v. North Side Publishing Co., 20 N. Y. Supp. 892.

130 Gammon v. Dyke, 2 Wash. T. 266, 5 Pac. 845.

131 Kennedy v. Dickie, 27 Mont. 70, 69 Pac. 672; Yank v. Bordeaux, 29 Mont. 74, 74 Pac. 77.

an admission of any of the facts in that part of the paragraph of the complaint to which the answer referred.132 An allegation that an execution was issued before judgment was properly entered, being pregnant with the admission that judgment was in fact entered, is a mere conclusion of law, and presents no statement on which an issue of fact can be made.133 A mere denial of the debt sued on without denying the facts pleaded in the complaint, and on which the debt is based, raises no issue of fact.184 An averment in the complaint that the act was "wrongfully and maliciously done," and a denial in the answer that it was "wrongfully and maliciously done," does not put in issue the doing of the act.135 But an allegation in a complaint that the assignment which the plaintiff seeks to set aside was made with intent to hinder, delay, and defraud creditors, etc., is sufficiently put in issue by a denial that the assignment was made with intent to hinder and defraud creditors.136

An allegation in a sworn answer that "on a certain day the said French and Robinson, by deed duly executed, acknowledged, and recorded, conveyed said premises to this defendant, for the sum of seven thousand seven hundred and fifty dollars," is not denied by a statement in the replication that "the plaintiffs further deny that said French and Robinson, or either of them, conveyed said premises to the defendant for the sum of seven thousand seven hundred and fifty dollars, or for any other sum.” Such denial does not deny the conveyance, the material fact, but only a conveyance for a consideration. Under such denial, the party making such averment is not required to offer his deed in evidence on the trial. The allegation of the answer is deemed admitted under the provisions of the statute.137

§ 419. Sham, irrelevant, and frivolous matters.-Sham and irrelevant answers, and irrelevant and redundant matter inserted in a pleading may be stricken out upon such terms as the court may in its discretion impose.138 A "sham" answer is one good in

132 Turner v. Turner, 33 Wash. 118, 74 Pac. 55; Higgins v. Graham, 143 Cal. 131, 76 Pac. 898; Agle v. Standard Drug Co., 29 Mont. 111, 74 Pac. 135.

133 Burton v. Kipp, 30 Mont. 275, 76 Pac. 563.

134 Jackson v. Green, 13 Okla. 314, 74 Pac. 502.

135 Kinsey v. Wallace, 36 Cal. 463. 136 Read v. Worthington, 6 Bosw. 617.

137 Landers v. Bolton, 26 Cal. 416. 138 Cal Code Civ. Proc., § 453. See Frost V. Harford, 40 Cal. 166; Felch v. Beaudry, 40 Cal. 444; Davis v. Honey Lake Water Co., 98 Cal. 417, 33 Pac. 270.

pleaded in good faith. It sets A "frivolous" answer is one so

form but false in fact and not up new matter which is false.139 clearly and palpably bad as to require no argument or illustration to show its character, and which would be pronounced. indicative of bad faith in the pleader upon a bare inspection;140 in other words, it denies no material averment in the complaint and sets up no defense.141 Immaterial averments in a pleading need not be denied ;142 and if it be done, both the complaint and the answer, so far as they relate to such immaterial averments, will be disregarded when the sufficiency of the pleadings are questioned. 143 A denial of immaterial circumstances may in some cases, however, be treated as sufficient at the trial, if not previously objected to.144 Non-issuable matter need not be denied ;145 nor allegations anticipating a defense.146 Matter not well pleaded need not be denied, for if a defendant merely denies what is nonessential in the averments of the complaint, it is an admission of all that is essential to a recovery,1 147 and the denial of such averments is unnecessary. Allegations of matters of evidence in a pleading are not issuable facts; if the answer puts in issue the ultimate facts resulting from the evidence, it is a sufficient denial.148 Allegations of intention showing express malice are not issuable facts;149 nor allegations of aggravation;150 nor allegations of special damages, unless they are the gist of the action,151

In

A denial clearly evasive is insufficient to raise an issue.152 order to determine whether the denials in an answer are evasive, each separate denial and each separate allegation must be taken

139 Piercy v. Sabin, 10 Cal. 22, 70 Am. Dec. 692; Gostorfs v. Taafe, 18 Cal. 385.

140 Strong v. Sproul, 53 N. Y. 497; Cottrill v. Cramer, 40 Wis. 555; Bank of Commerce v. Humphrey, 6 S. Dak. 415, 61 N. W. 444.

141 Hemme v. Hays, 55 Cal. 337. 142 Racouillat v. Rene, 32 Cal. 450: McCaughey v. Schuette, 117 Cal. 225, 59 Am. St. Rep. 178, 46 Pac. 666, 48 Pac. 1088; Pence v. Durban, 1 Idaho, 552; McNabb v. Wixom, 7 Nev. 172.

143 Jones v. City of Petaluma, 36 Cal. 230; Doyle v. Franklin, 48 Cal. 539.

144 Wall v. Buffalo Water Works Co., 18 N. Y. 119.

145 Harbeck v. Craft, 4 Duer, 122; Edgerton v. Smith, 3 Duer, 614. 146 Canfield v. Tobias, 21 Cal. 349; Wormouth v. Hatch, 33 Cal. 128.

147 Leffingwell v. Griffing, 31 Cal. 231; Landers v. Bolton, 26 Cal. 416; Camden v. Mullen, 29 Cal. 567. See Scovill v. Barney, 4 Or. 289.

148 Moore v. Murdock, 26 Cal. 524; Siter v. Jewett, 33 Cal. 96; Thomas v. Desmond, 63 Cal. 427.

149 Fry v. Bennett, 5 Sandf. 54. 150 Bates v. Loomis, 5 Wend. 134; Gilbert v. Rounds, 14 How. Pr. 49; Schnaderbeck v. Worth, 8 Abb. Pr. 37. 151 Malony v. Dows, 15 How. Pr. 265; Perring v. Harris, 2 M. & Rob. 5. 152 Beebe v. Marvin, 17 Abb. Pr. 194; Lawrence v. Derby, 24 How. Pr. 133.