Lake v. Steinbach

• Decision Date: 03 February 1893
• Citation: 5 Wash. 659,32 P. 767
• Parties: LAKE v. STEINBACH.
• Court: Washington Supreme Court

32 P. 767

5 Wash. 659

LAKE v. STEINBACH.

Supreme Court of Washington

February 3, 1893

Appeal from superior court, Pierce county; F. Campbell, Judge.

Action by John Lake against E. Steinbach. There was a judgment for defendant, and plaintiff appeals. Reversed.

Arthur Remington, (Emmons & Emmons, of counsel,) for appellant.

Shank &amp Murray, for respondent.

ANDERS J.

The appellant brought this action against the respondent to recover the amount due upon a judgment rendered in the state of Illinois. The allegations of the complaint are as follows "First. That, at the times hereinafter mentioned, the circuit court of Winnebago county, in the state of Illinois was a court of general jurisdiction, duly created and organized under and by virtue of the laws and constitution of said state of Illinois. Second. That on the 15th day of August, 1885, the plaintiff commenced an action in said court by the filing of a declaration; and that thereupon said defendant, E. Steinbach, on the same day, duly appeared in said action in said court, by his duly constituted and appointed attorney, and duly waived service of process, and admitted the cause of action alleged against him in said declaration, and the amount therein claimed to be due upon the promissory note therewith filed, and did then and there confess and consent to the entry of judgment against him, in favor of said plaintiff, for the sum of four thousand one hundred and forty-one and 66-100 dollars, and costs of suit. Third. That thereupon such proceedings were had therein in said court that on the 15th day of August, 1885, a judgment for the sum of four thousand one hundred and forty-one dollars and sixty-six cents, and costs, duly taxed at two dollars and seventy-five cents, was duly given, made, and entered by said court in favor of the plaintiff, John Lake, and against the defendant, E. Steinbach. Fourth. That no part of said judgment has been paid or satisfied, except the sum of three thousand six hundred and forty-two dollars and twenty-two cents; and that there is now due and owing to said plaintiff, who is now the legal owner and holder of said judgment, from the said defendant, upon the said judgment, the sum of five hundred and two dollars and nineteen cents, together with the interest thereon, at the rate of six per cent, per annum, from the 18th of September, 1885. Fifth. That said defendant, E. Steinbach, was out of and absent from the state of Washington at the time said judgment was entered and given as aforesaid, and did not come into or return to this state thereafter until less than six years prior to the commencement of this action." To this complaint the defendant filed an answer, consisting of the following averments: "(1) That he does not deny or admit the first, (1,) second, (2,) or third (3) allegations of plaintiff's complaint. (2) In answer to the fourth (4) allegation of plaintiff's complaint, defendant denies that there is any money due and owing to said plaintiff on any judgment whatever obtained by said plaintiff against said defendant. (3) Defendant neither admits nor denies the fifth (5) allegation contained in plaintiff's complaint. (4) As a further answer to plaintiff's complaint, defendant alleges, first, that more than six years has elapsed since the cause of said action on said judgment referred to in plaintiff's complaint accrued." The plaintiff, believing that the answer neither controverted any of the material allegations of the complaint nor contained any new matter constituting a defense or counterclaim, after waiting until the time for answering had expired, disregarded the same, and moved for a default and for judgment. This motion was denied, and, the plaintiff electing to stand upon his motion, and failing to reply to what the defendant deemed new matter in the answer, the latter applied to the court for judgment on the pleadings, in accordance with section 200 of the Code of Procedure. The court granted defendant's motion, and entered judgment dismissing the action, and for costs against plaintiff. The plaintiff appeals, and contends that the court erred (1) in denying his motion for judgment, and (2) in dismissing the action for failure to file a reply. And the question to be determined is, does this answer traverse any material fact alleged in the complaint, or set out any new matter constituting a defense to the action? If it does not, then the action of the court was clearly wrong.

In deciding this question we are to be governed wholly by the provisions of the statute. 2 Hill's Code, § 185 et seq. And the statute provides "that the answer of the defendant must contain "(1) a general or specific denial of each material allegation of the complaint controverted by the defendant; *** (2) a statement of any new matter constituting a defense or counterclaim, in ordinary and concise language without repetition." Id. § 194. It is further declared that "every material allegation of the complaint *** not controverted by the answer *** shall be taken as true." Id. § 215. Now, tested by the foregoing requirements, this answer is obviously insufficient. It neither denies generally nor specifically any...