First Nat. Bank v. Martin

• Decision Date: 16 November 1898
• Citation: 6 Idaho 204,55 P. 302
• Parties: FIRST NATIONAL BANK OF MOSCOW v. MARTIN
• Court: Idaho Supreme Court

55 P. 302

6 Idaho 204

FIRST NATIONAL BANK OF MOSCOW v. MARTIN

Supreme Court of Idaho

November 16, 1898

STIPULATION.-A stipulation of parties in disregard of the rules of the court will not be regarded by the court.

BANKRUPTCY-BOND OF ASSIGNEE-BREACH OF BOND.-In an action upon the bond of an assignee in bankruptcy, where the trial court finds that assets to the amount of $2,005 of the bankrupt's estate have been received by the assignee, that all of the proceedings required by statute have been followed up to enforce an accounting by the assignee, but that such assignee has failed and neglected to account for such assets, a finding by the court that such failure on the part of the assignee constitutes a breach of the bond is not error.

SHAM AND FRIVOLOUS ANSWERS.-An answer which contains denials upon information and belief of matters which are entirely made up of the files and records in a case in which the defendant was a principal party is properly stricken out as sham and frivolous.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Affirmed, with costs.

G. G Pickett and S. S. Denning, for Appellants.

Where it is that an action is pending or has been tried in the same court as the case on trial, and either of the parties rely on the records of the other case, the court will not nor cannot take judicial notice of such record unless the same is offered in evidence. (Downing v. Howlett, 6 Colo App. 291, 40 P. 505; Myers v. State, 46 Ohio St 473, 15 Am. St. Rep. 638, 22 N.E. 43; People v. De La Guerra, 24 Cal. 73, 77; Water Co. v. Coles, 31 Cal. 215; Ralphs v. Hensler, 97 Cal. 296, 32 P. 243; Daniel v. Bellamy, 91 N.C. 78; Ferrier v. Bates, 55 Tex. 193; Idaho Rev. Stats., sec. 4208.) Sham and irrelevant answers and irrelevant and redundant matter inserted in the pleading may be stricken out upon such terms as the court in its terms impose. (Fay v. Patterson, 51 Cal. 313; Greenbaum v. Turrill, 57 Cal. 285; Lybecker v. Murray, 58 Cal. 186.)

Forney, Smith & Moore, for Respondent.

It is fundamental that sham and irrelevant answers and matters inserted in a pleading may be stricken out. (Idaho Rev. Stats., sec. 4208; Pomeroy's Code Remedies, secs. 551, 552, 585; Bliss on Code Pleadings, 422.) Upon the right to strike out matters denying court records upon information and belief, we cite Mullally v. Townsend, 119 Cal. 47, 50 P. 1066, which case holds that the court can absolutely disregard such denials. (Mulcahy v. Buckley, 35 P. 144, 100 Cal. 484; Cumins v. Lawrence Co., 1 S. Dak. 158, 46 N.W. 182.) The allegations at paragraph 4 of the complaint being expressly admitted at paragraph 4 of the answer, none of the defendants could question the validity of the claim sued upon. The claim having been allowed by the assignee, such allowance binds the bondsmen. An assignee, in the allowance of a claim, acts judicially. (Krider v. Coley, 7 Kan. App. 349, 51 P. 919.)

HUSTON J., SULLIVAN, C. J. Sullivan, C. J., Quarles, J., and Huston, J., concurring.

OPINION

HUSTON, J.

This is an action upon the bond of an assignee in bankruptcy. The record presented in this court contains the pleadings in the case (consisting of the complaint, demurrer to complaint, the answer, demurrer to answer, notice of motion, and motion to strike out portions of the answer, and the rulings of the court thereon), the findings of fact and conclusions of law by the court, the decree, a bill of exceptions, notice of appeal, and what is designated in the record as an "Enumeration of Original Papers." The bill of exceptions contains simply the motion of plaintiff to strike out a portion of the answer, the ruling of the court sustaining the same, and the defendants' exception thereto. Appellants have also presented the court with a bundle of papers, purporting to be the files and copies of the record in the bankruptcy proceedings in which the principal defendant L. D. Martin was appointed assignee, and the bond sued on was given. It seems by the record that the attorneys in the case stipulated that these papers "may be omitted from the printed transcript on appeal, and the parties hereto agree that the said records and files, as the same are now in the above court, may be used upon the hearing of said appeal." In making stipulations, counsel should not be unmindful of the rules prescribed by the court. Our rules require transcripts to be printed. We cannot consent to go into an examination of the files and records of a bankruptcy proceeding which was pending in the district court for several years, when the same, or such portions thereof as are essential to a proper presentation of the case, are not incorporated in the printed transcript. We think, however, that we can properly dispose of this case from a consideration of the printed transcript. The court finds that the said L. D. Martin has failed and neglected to account for the assets of said estate which came into his hands as such assignee; that there came into the hands of said assignee, as appears by the invoice of the assets of said bankrupt estate, property of the appraised value of $ 2,005; that the whole amount accounted for by said L. D. Martin as assignee was $ 857.37; that the total amount of claims presented against said estate was the sum of $ 624.32, or thereabouts; that no dividends were ever paid by said assignee to any of the creditors. These findings are based upon the evidence presented to the court, and, in the absence of any showing to the contrary, will be deemed correct. It is admitted by defendants that there came to the hands of said assignee, as such, assets of said bankrupt's estate to the amount of $ 2,005. It is further admitted by the defendants that no dividend has ever been paid to the creditors of said estate. These facts, found by the court and admitted by the defendants, would seem to be sufficient to establish the liability of the defendants.

Counsel for appellants make five assignments of error. The first is that the complaint does not state facts sufficient to constitute a cause of action. The complaint contains a concise statement of the proceedings in bankruptcy leading up to and constituting the alleged breach of the conditions of the bond. This error is not well laid.

The second error assigned is in sustaining the demurrer to defendants' answer, and the third assignment is in striking out a portion of the answer. There was no error either in sustaining the demurrer, or in allowing the motion to strike out. The answer admitted enough to entitle the plaintiff to judgment. The denials were mostly upon information and belief. To designate an answer as sham and frivolous which is made up of denials, upon information and belief, of matters entirely of record in a proceeding in which the defendant was a principal party, is emulative of the roaring of Nick...