ment, the court should permit an amendment of the pleading, where an amendment will cover the defect, the same as if a demurrer had been interposed.8 § 1449. Denial.-It does not follow because defendant makes no denial of any allegation in the complaint that this is such an admission of the cause of action that a judgment contrary to the admission is erroneous, if affirmative matter of defense is stated." If the answer contains a denial of the material facts alleged as a cause of action in the complaint, and a special defense stated separately, the plaintiff is not entitled to a judgment on the pleadings, even if the entire cause of action is confessed in the special defense.10 In a suit against a former administrator by his successor, who alleges a final settlement of the former's accounts, and a final decree as to his administration, a denial of these allegations. is sufficient to prevent a judgment on the pleadings. 11 In a suit on a promissory note, a denial that anything remains due, coupled with an allegation of payment to original holder, without notice of an alleged assignment, raises an issue of fact, and judgment for plaintiff should not be given on the pleadings. 12 Where the facts constituting a cause of action are specially admitted by the answer, a judgment may be entered against the defendant on the pleadings, notwithstanding the complaint contains an allegation of nonpayment and the answer denies it.13 If plaintiff treats the denials as sufficient, and goes to trial and introduces evidence in support of his complaint, he cannot afterwards move for judgment on the pleadings. 14 Where the defendant in an action on an account demanded a certain sum, and the answer set out an itemized account admitting responsibility for part of the sum demanded, the correctness of the account being denied in the reply, it was proper to refuse the plaintiff judgment on the pleadings for the full amount demanded. 8 California State Tel. Co. v. Patterson, 1 Nev. 151. 9 Newell v. Doty, 33 N. Y. 83. 10 Nudd v. Thompson, 34 Cal. 39; Amador County v. Butterfield, 51 Cal. 526. 11 Craig v. Bateman, 49 Cal. 71. 12 Farmers etc. Bank v. Christensen, 51 Cal. 571. 13 Esbensen v. Hover, 3 Colo. App. 467, 33 Pac. 1008. 14 Tevis v. Hicks, 41 Cal. 123. As to what admissions are conclusive against the defendant, see Burke v. Table Mountain Water Co., 12 Cal. 403; Fremont v. Seals, 18 Cal. 433; Mathewson v. Fitch, 22 Cal. 86; Dodge v. Walley, 22 Cal. 229, 83 Am. Dec. 61; Blood v. Light, 31 Cal. 115; Numan v. City and County of San Francisco, 38 Cal. 689. and to confine the judgment to the amount admitted in the answer. 15 § 1450. Two causes of action.-If a good plea of former adjudication is made to one cause of action, the court cannot grant judgment on the pleadings as to both causes. 16 § 1451. Demurrer must be disposed of. When a demurrer is filed to a defendant's answer, it is irregular for plaintiff to take judgment before some disposition is made of the demurrer, 17 as the demurrer must be disposed of before the issue of fact is tried,18 and before judgment on the merits can be rendered.19 But if no objection is made at the time of trial, it is not such an irregularity as entitles the plaintiff to a new trial.20 § 1452. Discretion.-Motions for judgment on the pleadings are allowed in the discretion of the court.21 Such motions can be allowed only where the answer wholly fails to deny any material allegation of the complaint.22 A motion for judgment on the pleadings is not in harmony with the spirit of code procedure, and is not favored.23 And when any of the material allegations of the complaint are denied by the answer, it is error to render judgment on the pleadings.24 But where a complaint states a cause of action, and proof of the affirmative averments in the answer would be immaterial, and the denials of the answer are merely of matters of law, it is proper to render a judgment for the plaintiff upon the pleadings.25 Where the complaint states facts sufficient to constitute a cause of action, a motion by the defendant for judg 15 Griffith v. Maxwell, 25 Wash. 658, 66 Pac. 106. 16 Fouts v. Pettigrew, 68 Kan. 289, 74 Pac. 1107. 17 Huse v. Moore, 20 Cal. 115; Calderwood v. Tevis, 23 Cal. 335. 18 Ellis v. Loumier, 1 Mo. 260. 19 Manifee v. D'Lashmutt, 1 Mo. 258. 20 Calderwood v. Tevis, 23 Cal. 335. 21 Fitzgerald v. Neustadt, 91 Cal. 600, 27 Pac. 936; Willson v. McDonald, Cal. Sup. Ct., July Term, 1869. 22 Id.; and see, to same effect, Gardner v. Donnelly, 86 Cal. 367, 24 Pac. 1072; McDonald v. Pincus, 13 Mont. 83, 32 Pac. 283; Wallace v. 23 Currie v. Southern Pacific Co., 23 Or. 400, 31 Pac. 963. 24 Willis v. Holmes, 28 Or. 265, 42 Pac. 989; Johnson v. Manning, 3 Idaho, 352, 29 Pac. 101; Botto v. Vandament, 67 Cal. 332, 7 Pac. 753; Widmer v. Martin, 87 Cal. 88, 25 Pac. 264; Hastings v. Bank of Longmont, 4 Colo. App. 419, 36 Pac. 618. 25 Heydenfeldt v. Jacobs, 107 Cal. 373, 40 Pac. 492; Drew v. Pedlar, 87 Cal. 443, 22 Am. St. Rep. 257, 25 Pac. 749; Simpson v. Prather, 5 Or. 86. Motion by defendant for judg ment upon the pleadings, when grant ment upon the pleadings cannot properly be granted.26 Vagueness is not visited by judgment.27 A motion for judgment on the pleadings ought not to be granted where material matters denied on information and belief were not presumptively within the knowledge of the defendants.28 § 1453. Admission in answer. If the answer set out an itemized account, admitting liability for part of plaintiff's claim, and plaintiff, by reply, denies correctness of the account, the court should not grant judgment to plaintiff on the pleadings for the full amount, but only for the amount admitted in the answer. 29 Upon motion for judgment on the pleadings, plaintiff admits not only all allegations of defendant's answer, but that all allegations of his own complaint which are denied are untrue;30 and if the bar of the statute of limitations is pleaded, judgment for defendant cannot be granted, though the complaint show on its face that the action is barred.31 The admission in an answer of an assignment to plaintiff, happening of the specified contingency, and nonpayment entitle plaintiff to a judgment on the pleadings.32 A matter pleaded as both a defense and a counterclaim, but constituting neither, permits judgment on pleadings. 33 An answer admitting the contract, denying a substituted contract, and alleging a breach of plaintiff, makes an issue to be tried.34 § 1454. Frivolous answer. It seems that the plaintiff cannot move for a judgment, on a frivolous plea, unless the answer as an entirety is frivolous. If it contains several defenses, some well pleaded and some insufficient, the latter should be demurred to, or moved to be stricken out, as the case may be.35 But if parts only are bad, relief is to be had by a motion to strike out. ed, see Hindman v. Oregon etc. Nav. Co., 17 Or. 614, 22 Pac. 116; De Toro v. Robinson, 91 Cal. 371, 27 Pac. 671; Kelley v. Kriess, 68 Cal. 210, 9 Pac. 129. 26 Denis v. Velati, 96 Cal. 223, 31 Pac. 1. See Dexter v. Sparkman, 2 Wash. 165, 25 Pac. 1070. 27 Kelly v. Barnett, 16 How Pr. 135. 28 Wickersham v. Comerford, 104 Cal. 494, 38 Pac. 101. 29 Griffith v. Maxwell, 25 Wash. 658, 66 Pac. 106. 30 Walling v. Bown, 9 Idaho, 184, 72 Pac. 960. 31 Chemung Min. Co. v. Hanley, 9 Idaho, 786, 77 Pac. 226. 32 Noyes v. Young, 32 Mont. 226, 79 Pac. 1063. 33 Rensberger v. Britton, 31 Colo. 77, 71 Pac. 379. 34 Stratton's Independence v. Stark, 20 Colo. App. 452, 79 Pac. 745. 35 Van Valen v. Lapham, 13 How. Pr. 240. It is true that there may be no objection to combining both of these applications in one motion; but in that case, whether judgment on the whole answer can be granted must depend on whether the parts of the pleading objected to are stricken out, and, if they are, whether the whole answer, as it then remains, be frivolous.36 In an action to quiet title, an answer which denies that plaintiff is the owner or in possession of the property, except as tenant in common with defendant, and alleges that the deed set out in the plaintiff's complaint, and under which he claims, was not intended as a conveyance, but simply to enable him to sell the property, and that the grantor therein had subsequently conveyed an interest in the property to defendant, presents a defense, and plaintiff is not entitled to judgment on the pleadings.37 When an answer sets up four defenses, two of which tendered issues with the complaint, and two of which in hypothetically admitting the averments of the complaint averred matter in avoidance, upon motion, it was held: 1. That the two hypothetical defenses must be stricken out; 2. That as there was enough left in the answer to put the plaintiff to proof of his case, it was unnecessary to allow an amendment.38 Vagueness in pleading is not frivolousness, and is to be corrected by amendment.39 A frivolous answer is one which denies no material averment in the complaint and sets up no defense, and when such an answer is filed the plaintiff may apply for judgment on the pleadings. 40 When the complaint in the second action states a cause of action, and the answer contains no denials of its allegations, but relies wholly upon the bar of the former judgment, it is proper to render judgment against the defendant upon the pleadings.41 § 1455. Election. When the defendants serve a pleading containing matter in answer and matter in demurrer to the complaint, they should be compelled to elect between the two.42 So where a demurrer to a plea is overruled, and the plaintiff does not obtain leave to withdraw it and file a replication, it amounts to an election to stand on the demurrer, and judgment should. 36 Lockwood v. Salhenger, 18 Abb. Pr. 136. 14. 37 Garvey v. Willis, 50 Cal. 619. 39 Kelley v. Barnett, 16 How. Pr. 135. 40 Hemme v. Hays, 55 Cal. 337. See Montgomery v Merrill, 62 Cal. 385. 41 Johnson v. Vance, 86 Cal. 110, 24 Pac. 862. 42 Slocum v. Wheeler, 4 How. Pr. 373; Struver v. Ocean Ins. Co., 16 How. Pr. 422. be rendered for the defendant.43 If plaintiff, instead of proceeding to trial upon the merits, announces that he will stand upon the motion for judgment on the pleadings, the court may enter judgment for defendant.44 § 1456. Verified answer.-A verified answer which in any part contains a distinct denial of a fact material to plaintiff's recovery cannot, whatever its defects, be treated as a nullity, so as to entitle plaintiff to judgment on the pleadings.45 Technically, a motion for judgment upon the pleadings, when there is a verified complaint and an unverified answer, is not good practice. The motion should be to strike the answer from the files, and for judgment as by default.46 § 1457. Notice of motion for judgment on the pleadings. Form No. 468. [TITLE.] Please take notice that the plaintiff will, on the . . . day of 19., at the courthouse, in the city of. . . and at the hour of. o'clock of said day, or as soon thereafter as counsel can be heard, move the court for judgment on the pleadings in said action, on the ground that the answer filed therein is frivolous [or, state other grounds]. This motion will be based upon the pleadings on file in said action. 43 Marshall v. Platte Co., 12 Mo. 88. 44 Moore v. Murray, 30 Mont. 13, 75 Pac. 515. 45 Ghirardelli V. McDermott, 22 Cal. 539. 46 Speer v. Craig, 16 Colo. 478, 27 Pac. 891; Tullock v. Belleville etc. Skein Works, 17 Colo. 579, 31 Pac. 229. |