Walker v. Pumphrey

• Decision Date: 20 May 1891
• Citation: 48 N.W. 928,82 Iowa 487
• Parties: WALKER v. PUMPHREY ET AL.
• Court: Iowa Supreme Court

82 Iowa 487

48 N.W. 928

WALKER

v.PUMPHREY ET AL.

Supreme Court of Iowa.

May 20, 1891.

Appeal from district court, O'Brien county; C. H. LEWIS, Judge.

Action to recover on a bond given by an assignee of a debtor who had made to him a general assignment for the benefit of his creditors. After answer by some of the defendants, a demurrer by another, which was stricken from the files, a motion for default, an answer from defendant not before answering, and some other proceedings, the plaintiff filed a motion to strike the answer of defendant last filed, which was overruled, and an order to that effect entered, from which plaintiff now appeals.Warren Walker, pro se.

W. D. Boies, for appellees.

BECK, C. J.

1. All the assignments of error relate to the action of the court in overruling the motion of plaintiff to strike from the files the answer of one of the defendants, filed after his demurrer had been stricken from the files on motion. It is not necessary to set out the pleadings or state their contents. The motion to strike defendant's answer, which is the ground of plaintiff's complaint, we present in full, in order that the points made and decided may clearly appear. It is in the following language:

“Comes now plaintiff, and moves the court to strike the so-called ‘answer’ of the defendant J. R. Pumphrey from the files, and in case the same is not stricken from the files, that portion thereof be stricken out, and shows the court the following grounds therefor: (1) That said answer is not filed in time; that said cause was commenced prior to the November term of this court; that on the 13th day of November, 1888, the said J. R. Pumphrey appeared in person, and by W. D. Boies, his attorney, and was given time to answer on or before December 15, 1888, and that at the request of the defendants said cause was continued for that purpose; and that said defendant failed to answer in time, as provided by law or order of this court. (2) That on the 16th day of January, 1889, it being the third day of the regular January term of the said court, the plaintiff herein filed his motion for default and judgment for want of the answer, which motion is hereby referred to and made a part hereof. (3) That after the filing of said motion for default, and after said defendant was in default for want of pleading, the said defendant, on the 16th day of January, 1889, filed herein his so-called ‘demurrer’ to plaintiff's petition; that at the time of the filing of said demurrer the defendant Pumphrey was in default, as shown by the records of this court. (4) That on the 17th day of January, 1889, the plaintiff filed herein his motion to strike said demurrer from the files, for the reason that the same was not filed in time, and for the reason that the defendant was already in default, said motion being herein referred to, and made a part hereto, the same as though fully set out herein; that said motion was sustained by the court. (5) That on the 18th day of January the defendant filed herein his so-called ‘answer;’ that at the time of the filing of said answer the defendant was in default for want of a pleading within the time provided by law or order and rules of this court. (6) That at the time of the filing of said answer, and long prior thereto, motion for default and judgment had already been filed by the plaintiff, and said defendant was in default at the time. (7) That said answer was not verified as provided by law. (8) That no reason was given why said answer is not verified by the said defendant. (9) That said W. B. Boies does not show facts sufficient to entitle him to make said verification. (10) That said answer does not state any facts which are a defense in said action; that in case said answer is not stricken from the files, that portion, therefore, be stricken, for the following reasons, to-wit: (11) That the first division of said answer be stricken out as incompetent, irrelevant, and immaterial, and redundant matter, and for the further reason that the same is pleading a conclusion of law instead of facts. (12) That the second division of said answer be stricken out as immaterial and redundant matter, and for the reasons that the same constitutes no defense to the petition, and does not state a cause of action or defense. (13) That said second division be stricken out for the reason that it pleads a conclusion of law instead of facts. (14) That the third division be stricken out as immaterial and redundant matter, and that the same constitutes no defense to the action,...