Hughes v. Brewer

• Decision Date: 31 October 1884
• Parties: HUGHES v. BREWER.
• Court: Colorado Supreme Court

4 P. 1115

7 Colo. 583

HUGHES v. BREWER.

Supreme Court of Colorado

October 31, 1884

Appeal from the county court of Arapahoe county.

J. P. Brockway, for appellant.

A B. McKinley & I. N. Stevens and Allen &amp Furgeson, for appellee.

BECK C.J.

This was an action upon a judgment rendered by the district court of Albany county, Wyoming territory, in favor of one John McLean, and against the appellant, Hughes. The action was brought in the court below by the appellee, Brewer, who alleged in his complaint that said judgment had been assigned to him for a valuable consideration, and that no part of the judgment had been paid. The questions of law involved arise upon the answer of the defendant, Hughes, and the rulings and action of the county court therein. The answer is as follows:

'And now comes the said defendant, and for answer to the said plaintiff's complaint herein says that as to the allegation in said complaint, 'that on the second day of December, A. D. 1880, for a valuable consideration by said plaintiff, Brewer, unto the said McLean paid, the said John McLean did assign and convey unto plaintiff the judgment,' defendant has not and cannot obtain sufficient knowledge or information upon which to base a belief, and therefore denies that said plaintiff paid said McLean anything whatever for said judgment, and denies that the said judgment was assigned by said McLean to said Brewer, and denies that said Brewer is the owner of said judgment, and avers that said McLean is now the real owner of said judgment, and avers that said McLean is the real party in interest in this suit; wherefore, defendant demands that he be allowed to go hence without day, and have judgment for his costs in this suit.'

The answer was properly verified. The plaintiff moved the court to strike the answer from the files, and for judgment for want of an answer, on the ground that the answer was a sham pleading and sought to raise an immaterial issue. The court sustained the motion and gave judgment upon the complaint for the amount of plaintiff's demand, to which ruling and action of the court the defendant duly excepted.

Two questions are presented for our consideration by the assignment of errors, viz.: First. Did the court err in striking the answer from the files? Second. Were the allegations of the complaint sufficient to invest the court with jurisdiction of the subject-matter of the controversy?

The objection to the answer, that it presents an immaterial issue, cannot be sustained. The averments that the judgment was not assigned by McLean to Brewer, that Brewer is not the owner of the judgment, and that McLean is the owner of the judgment, go directly to the plaintiff's right of action. His right of action depends upon the averment of the complaint that the judgment has been assigned to him, and proof of that fact is essential to a recovery of a judgment in his favor against the defendant. This being so, a denial of the truth of the allegation necessarily presents a material issue. It only remains, therefore, to inquire whether the denial, as pleaded, was in proper form. The answer was made upon information and belief, and it is probable that the court adjudged it to be a sham pleading because the averments contained therein were not in the positive form. The provision of the Civil Code upon this subject is as follows:

'In denying any allegation in the complaint not presumptively within the knowledge of the defendant, it shall be sufficient to put such allegation in issue for the defendant to state, as to any such allegation, he has not and cannot

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