Randall v. Simmons

• Decision Date: 03 February 1902
• Citation: 40 Or. 554,67 P. 513
• Parties: RANDALL v. SIMMONS et al.
• Court: Oregon Supreme Court

67 P. 513

40 Or. 554

RANDALL v. SIMMONS et al.

Supreme Court of Oregon

February 3, 1902

Appeal from circuit court, Clackamas county; Thos. A. McBride Judge.

Action on a note by W.G. Randall against Allen Simmons and others. From a judgment in favor of the plaintiff, the defendants C.H. Sarver and George A. Hamilton appeal. Reversed.

This is an action to recover the sum of $100 on a promissory note alleged to have been jointly and severally executed for value by the defendants April 28, 1893, to the plaintiff, payable six months thereafter, with interest at the rate of 10 per cent. per annum, upon which the interest had been paid to October 28, 1893. The defendants C.H. Sarver and George A Hamilton filed an amended answer as follows: "Admit the execution and delivery of the note mentioned in the complaint, but deny that no other payment has been made thereon than five dollars, and deny that there is any sum due from these defendants thereon. For a further answer and separate defense defendants allege that said note was given for a loan of money to Allen Simmons, who alone received the valuable consideration; that these defendants were merely sureties for said Allen Simmons, which fact was well known to plaintiff at the time of the delivery of said note; and that notwithstanding said suretyship and such knowledge, the plaintiff, through his general agent, W.C. Johnson, for a valuable consideration, to wit, the sum of $2, by said Allen Simmons paid to said plaintiff at the time of the maturity of said note without the knowledge or consent of these defendants, the sureties, or either of them, extended the time of payment of said note from its maturity, October 28, 1893, six months, or until April 28, 1894, thereby releasing these defendants from all liability thereon." Plaintiff's motion to strike out the further and separate defense on the grounds (1) that the same was sham, (2) that it was frivolous, and (3) that it was inconsistent with the other parts of the answer, having been sustained, and the defendants refusing to plead further, judgment was rendered against them for the sum of $99.90, with interest from October 28, 1893, and they appeal.

C.D. Latourette, for appellants.

Joseph E. Hedges, for respondent.

MOORE J. (after stating the facts).

The statute provides that sham, frivolous, and irrelevant answers and defenses may be stricken out on motion. Hill's Ann.Laws Or. § 75. The allegations of new matter in the further and separate answer are not false in fact, or pleaded in bad faith, and hence such averments are not sham. Foren v. Dealey, 4 Or.

92; Miser v. O'Shea, 37 Or. 231, 62 P. 491. A frivolous answer is one in which the issues raised do not exhibit any cause of defense, the insufficiency in this respect being apparent from an inspection of the averments. The Victorian, 24 Or. 121, 32 P. 1040, 41 Am.St.Rep. 838. The averments of new matter stricken out by the court are evidently material, disclosing an apparent defense, to overcome which argument, at least, would be required to show that the allegations were trifling; and when it is necessary to resort to that method to discover such defect, the answer is not frivolous. 20 Enc.Pl. & Prac. 18; Cottrill v Cramer, 40 Wis. 555. It remains to be seen whether the allegations of new matter in the answer are so inconsistent with the prior admissions and denials therein as to render them subject to be stricken out on motion. The editors of the Encyclopedia of Pleading and Practice (volume 1, p. 856), in speaking of inconsistent defenses, say: "Two prominent elements intended in the code system of pleading are that falsehoods should not be put upon the record, and that the pleadings should disclose the facts relied on in support of or defense against the action." Tested by these important constituents, the allegations of new matter in the answer, if admitted to be true, do not necessarily establish the falsity of the admissions and denials put upon the record in the other part of the answer, nor do the averments of new matter fail to reveal the facts relied upon in defense to the action. The complaint alleges that the defendants, for value, jointly and severally executed the note sued upon; and this averment, not having been denied in the answer, is thereby admitted. Hill's Ann.Laws Or. § 94. It is also alleged in the complaint that the interest on the note for six months had been paid, and that there was then due thereon the sum of $100 and interest at 10 per cent. per...