be common to all." Against several executors, those served first, or who appear first, may answer for the estate.72 § 675. Several defenses.-The defendant may set forth by answer as many defenses and counterclaims as he may have. They shall each be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer in a manner by which they may be intelligibly distinguished." Separate allegations of matters in avoidance are admissible in connection with the general denial." Several demands against the plaintiff which are available to the defendant as a set-off may be pleaded in one defense, each being separately described." would seem to be otherwise of counterclaims. It FORMS, SEVERAL DEFENSES. § 676. Demurrer and answer. [TITLE.] Form No. 210. The defendant demurs [or the defendants, naming them, if only a part of them join, demur] to the first [or other] cause of action stated in the complaint, on the following grounds: I. [State the grounds.] II. And for answer to the plaintiff's complaint, the defendant denies, admits, and alleges, as follows: That, etc. § 677. Several defenses and a counterclaim. [TITLE] Form No. 211. The defendant answers to the complaint: First. To the first cause of action: I. That he denies each and every allegation in the first paragraph thereof. 71 Hurley v. Second Bldg. Assoc., 15 Abb. Pr. 206, note. 72 Salters v. Pruyn, 15 Abb. Pr. 224. 78 Cal. Code Civ. Proc., § 441; N. Y. Code, 1877, § 507; Bennett v. Le Roy, 14 How. Pr. 178, 5 Abb. Pr. 55, 6 Duer, 683; Gardner V. McWilliams, 42 Or. 14, 69 Pac. 915. 14 Kellogg v. Baker, 15 Abb. Pr. 286; McDonald v. American Mort. Co., 17 Or. 626, 21 Pac. 883; Snodgrass v. Andross, 19 Or. 236, 23 Pac. 969; Veasey v. Humphreys, 27 Or. 515, 41 Pac. 8. See Pavey v. Pavey, 30 Ohio St. 600; Nelson v. Brodhack, 44 Mo. 596, 100 Am. Dec. 328. 75 Ranney v. Smith, 6 How. Pr. 420; Norris Safe & Lock Co. v. Clark, 28 Wash. 268, 68 Pac. 718, 70 Pac. 129. II. That as to the second paragraph thereof he has no knowledge, information, or belief, sufficient to enable him to answer the same or any allegation thereof, and he, therefore, denies each and every allegation therein contained. Second. To the second cause of action he answers: That the note mentioned therein is not his note. Third. To the third cause of action he answers, and avers: 1. For a first defense: I. That it was a part of the agreement referred to in the complaint that the plaintiff should not sell goods for any other person than the defendant. II. That the plaintiff during the period of his service mentioned in the complaint, sold sundry goods for one B. S., and for other persons whose names are unknown to the defendant, without the defendant's consent. 2. For a second defense: That he has fully paid the plaintiff for his services. . . . day of . . ., 19. ., the plaintiff received from D. A. dollars for the use of defendant. II. That he has not paid the same. Wherefore the defendant demands judgment for . . . dollars, with interest from the day of. 19 .. ... The defendant [or defendants severally, each for himself] answers to the complaint: First. For a first defense: I. As to the first cause of action set forth in the complaint, that no allegation thereof is true. II. That on, etc. [set out defense]. Second. For a defense to the second cause of action set forth in the complaint, the defendant alleges [set forth defense]. Third. For a third defense: And by way of counterclaim [or set-off or cross-complaint] to the [first] cause of action set forth in the complaint, the defendant alleges [set forth a cause of action against the plaintiff). CHAPTER XXVIII. DEFENSES-AFFIDAVIT OF MERITS OR OF DEFENSE. § 679. Defined.-An affidavit of merits or defense represents that, on the substantial facts of the case, justice is with the affiant.1 When a defendant makes such an affidavit, he swears that he has a genuine and bona fide defense, not a defense which will be successful at all events, but a defense to the merits, which he ought to be allowed to present, the merits meaning the legal rights of the parties as distinguished from questions of practice and discretion.3 2 An affidavit of merits is not in any sense a pleading, but it is often so inseparably connected with the pleadings of the defendant. that a trial on the merits cannot be had without it. Hence its principal features are deserving of some consideration at this point. The chief use of the affidavit of merits or defense is in connection with proceedings to secure relief from judgments taken by default. Such an affidavit is necessary also in order to support a motion for a change of venue. An affidavit of merits is almost universally required in order to vacate a judgment taken by default." As a general rule, a general affidavit of merits is usually held to be sufficient; but, for the purpose of opening a default, it has been held that a verified answer will not take the place of an affidavit of merits. In a recent California case, however, it was held that a verified answer served with the notice of motion, and containing specific denials of the material allegations of the complaint, and also affirmative matter, which, if true, was a com 1 Anderson's Law Dict.; Bouvier's Law Dict. 2 McDonald v. Olwell, 17 Ill. 376. Bailey v. Taaffe, 29 Cal. 424; Francis v. Cox, 33 Cal. 323; Nevada Bank v. Dresback, 63 Cal. 324; Tuttle v. Scott, 119 Cal. 588, 51 Pac. 849; Martin v. Skehan, 2 Colo. 614; Colorado Springs Co. v. Hewitt, 3 Colo. 375; Leahy v. Dunlap, 6 Colo. 552; McPherson v. Kingsbaker, 22 Kan. 646; Lamb v. Gaston etc. Min. Co., 1 Mont. 64; Donnelly v. Clark, 6 Mont. 135, 9 Pac. 887; State v. Consolidated Virginia etc. Min. Co., 13 Nev. 194; Ewing v. Jennings, 15 Nev. 379; Mitchell v. Campbell, 14 Or. 454, 13 Pac. 190. 7 Francis v. Cox, 33 Cal. 323; How v. Coldren, 4 Nev. 171; State v. Consolidated Virginia etc. Min. Co., 13 Nev. 194. 8 Parrott v. Den, 34 Cal. 79; Martin v. Skehan, 2 Colo. 614; Gauthier v. Rusicka, 3 N. Dak. 3, 53 N. W. 80. 9 Merchant's Ad. Sign Co. v. Los Angeles Bill Posting Co., 128 Cal 619, 61 Pac. 277. plete defense to the action, was held to be of itself a sufficient affidavit of merits. Under the Colorado statute1o providing that no defendant shall be permitted to deny the execution of an instrument sued on, unless he verify his plea by affidavit, the defendant cannot substitute an affidavit of merits for such verified plea.11 An affidavit of merits made by the defendant's attorney, setting forth that he is personally familiar with the facts; that he knows of his own knowledge of facts which constitute a full, meritorious, and legal defense; and that defendant has a complete defense, is sufficient, and no objection can be taken thereto merely because it was made by counsel.12 In such case, however, the affidavit should show a sufficient reason why it is not made by the party himself.18 Where the affidavit is made by counsel, it is only necessary that it show that he is familiar with the facts in the case. 14 Where two defendants file a joint answer to a complaint, with which plaintiff has filed an affidavit stating the nature of the demand and the amount due, an affidavit of merits accompanying the answer, sworn to by one of them, is sufficient. An affidavit which declares "that the defendant has fully and fairly stated the case to his counsel, and that he has a good and substantial defense on the merits to the whole of the plaintiff's demand, as he is advised by his counsel, and verily believes to be true," is sufficient.15 The affiant should aver that he has fully and fairly stated "the case," not "his case," to his attorney.16 But there is no essential difference between an affidavit of merits which states that the defendant "has fully and fairly stated the case in this action" and one which states that he "has fully and fairly stated the facts of the said case. And an affidavit of merits, otherwise good, is not defective because of failure to allege that the affiant believed the advice of his counsel; nor is it insufficient because of the omission of the names of the defendants from the title of the action, where the notice of motion states that 10 Rev. Stats., p. 506, § 14. 11 City of Central v. Wilcoxen, 3 Colo. 566. 12 Will v. Lytle Creek Water Co., 100 Cal. 344, 34 Pac. 830; Jean v. Hennessy, 74 Iowa, 348, 7 Am. St. Rep. 486, 37 N. W. 771. 18 Nicholl v. Nicholl, 66 Cal. 36, 4 Pac. 882. 917 14 Howe v. Coldren, 4 Nev. 171; Horton v. New Pass Gold Min. Co., 21 Nev. 184, 27 Pac. 376. 15 Watkins v. Degener, 63 Cal. 500; Buell v. Dodge, 63 Cal. 553; Rowland v. Coyne, 55 Cal. 1. 16 People v. Larue, 66 Cal. 235, 5 Pac. 157. 17 Rathgeb v. Tiscornia, 66 Cal 96, 4 Pac. 987. 18 it will be made "upon the affidavit and demand of defendant, and upon said notice and all the papers and pleadings on file in said action," and both the notice and demand were duly entitled, and the affidavit was filed with the notice." But an affidavit merely averring that the affiant had fully and fairly stated to the attorney all of the facts constituting his defense, instead of the facts of the case, is insufficient.19 In cases of motions for change of venue, it is a common and convenient practice to combine the affidavit of merits with the affidavit of the ground on which the motion is made, where the latter does not appear upon the face of the complaint, and is to be established by affidavit. It has been held that where it appears from the affidavit of merits that the defendant is entitled to file an answer which will raise issues for trial which he desires to have tried in the proper county, the affidavit is sufficient.20 A motion to set aside a default in an action for the price of goods, supported by an affidavit, in which the defendant says that he expects to prove that he has paid for the goods, but fails to state that he has in fact paid for them, must be disregarded.21 And an affidavit of merits stating facts on information and belief alone is insufficient, as being hearsay.22 A statement in the affidavit that the defendant has a good defense "to the plaintiff's declaration filed in this suit" is insufficient.23 And an affidavit which states merely that the defendant believes he has a good defense to a part of the amount of damages claimed in the action on the merits is defective.24 The affidavit must state that the defendant has a good and substantial defense.25 A verified complaint alleging the participation of another defendant with the defendant owners in the operation of a machine, when a fire was caused thereby, cannot be varied by an affidavit for the defendants denying that fact20 § 680. Time to answer. The time within which the defendant must answer is regulated by the codes, and differs in the several 18 Watt v. Bradley, 95 Cal. 415, 30 Pac. 557. 19 Nickerson v. California Raisin Co., 61 Cal. 268; Morgan v. McDonald, 70 Cal. 32, 11 Pac. 350; Palmer v. Barclay, 92 Cal. 199, 28 Pac. 226. 20 State v. Superior Court, 9 Wash. 668, 38 Pac. 206. 21 Hale v. Bender, 13 Neb. 66, 12 N. W. 920. 22 Jenkins v. Gamewell Fire Alarm Tel. Co. (Cal.), 31 Pac. 570. 23 Howe v. Hasbrouck, 1 How. Pr. 68. 24 McDonnell v. Murphy, 20 Ill. 346. 25 Bank of Utica v. Root, 4 Hill, 535. 26 Quint v. Dimond, 135 Cal. 572, 67 Pac. 1034. |