Bank of Richards v. Sheasgreen

• Decision Date: 10 November 1922
• Docket Number: No. 23086.,23086.
• Citation: 190 N.W. 484,153 Minn. 363
• Parties: BANK OF RICHARDS, MO., v. SHEASGREEN et al.
• Court: Minnesota Supreme Court

153 Minn. 363

190 N.W. 484

BANK OF RICHARDS, MO.,

v.SHEASGREEN et al.

No. 23086.

Supreme Court of Minnesota.

Nov. 10, 1922.

Appeal from District Court, Hennepin County; W. E. Hale, Judge.

Action by the Bank of Richards, Mo., against Edward E. Sheasgreen and others. From an order striking the answer, defendants appeal. Affirmed.

Syllabus by the Court

A ‘sham answer’ is one, sufficient on its face, but so clearly false that it presents no real issue to be tried. Such falsity may be established by affidavit and the sham answer stricken out on motion. On such motion it is for the court to determine whether there is an issue to try, not to try the issue.

The affidavits in this case made a clear prima facie case of the falsity of the answer. When such a showing is made the motion to strike will ordinarily be granted, unless the showing is met by counter affidavits or other proof which make it clear there is an issue to be tried. In this case defendants failed to make such proof. Trafford N. Jayne, of Minneapolis, for appellants.

Van Fossen & Garrigues, of Minneapolis, for respondent.

HALLAM, J.

This is an action on a promissory note brought by an indorsee against the makers. Defendants interposed an answer which the court, on motion of plaintiff, struck out as sham. Defendants appeal.

The law on this subject is well settled.

[1] 1. A sham answer may be stricken out on motion. A sham answer is one sufficient on its face, but so clearly and indisputably false that it presents no real issue of fact to be determined by a trial. Bad faith, however, is not necessary. State v. Weber, 96 Minn. 422, 105 N. W. 490,113 Am. St. Rep. 630;Brown-Forman Co. v. Peterson, 101 Minn. 53, 111 N. W. 733;Estate of P. D. Beckwith v. Golden Rule Co., 108 Minn. 89, 121 N. W. 427;Towne v. Dunn, 118 Minn. 143, 136 N. W. 562;Sheets et al. v. Ramer et al., 125 Minn. 98, 145 N. W. 787. The falsity of a pleading alleged to be sham may be established by affidavit. Barker v. Foster, 29 Minn. 166, 12 N. W. 460;Towne v. Dunn, 118 Minn. 143, 136 N. W. 562. On a motion to strike out an answer as sham, it is for the court ‘to determine whether there is an issue to try, not to try the issue.’ O'Donnell v. Lesselyoung, 150 Minn. 318, 185 N. W. 289. An answer will be stricken out as sham only when it is clear and undisputed that the alleged defense is wholly unsupported by facts. J. I. Case Threshing Mach. Co. v. Bargabos, 143 Minn. 8, 172 N. W. 882.

[2] 2. Applying these principles we think the order striking out the answer must be sustained. The answer contains a general denial but admits the giving of the note. It admits consideration for the note. It alleges that the defendants and Ouren, the payee of the note, were stockholders in a corporation, that Ouren paid to the corporation money in excess of the amount of the note and this note was given for part thereof. The answer then alleges as a defense that defendants also each contributed money to the corporation in excess of the amount of plaintiff's note and received notes therefor with Ouren as one of the makers, and that defendants each borrowed money for the corporation which they have been compelled personally to pay, that Ouren is liable for the repayment of a share of the money so paid out, and that this liability exceeds the amount of his note and operates as a payment...