Rogers v. Rogers

HANSON, J. pro tem.

This is a suit by the former wife of defendant to recover a balance alleged to be due upon their property settlement agreement which had been executed in the State of New York and incorporated into a decree of divorce granted to the plaintiff by a Nevada court after an appearance therein by the defendant. The defendant filed an answer containing three affirmative defenses. The second of these defenses alleges that on July 1, 1936, the parties entered into an oral agreement modifying their separation agreement whereby defendant was released from the obligation to make any payment thereunder except from such funds as he might

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have after paying his own necessary expenses. In connection therewith he averred that from July 1, 1936, to the month of December, 1937, his income had at all times been insufficient to pay his own expenses, and that since December, 1937, he had no income whatsoever; and in view of the oral agreement he had made no payments to the plaintiff. The trial court sustained a demurrer thereto without leave to amend. Thereafter the defendant filed a motion for leave to file an amended answer, which was denied. The proposed answer merely stated in more detail the defenses set forth in the original answer. The case being at issue on the answer containing certain denials and two affirmative defenses which had not been attacked by demurrer, it was set for trial. Defendant did not appear at the trial but instead took this appeal.

In support of the ruling below plaintiff urges that even if we should hold the ruling to be erroneous the defendant nevertheless has no ground for reversal, since defendant could have introduced evidence in support of the defense by reason of the fact that he had denied an allegation of plaintiff’s complaint reading as follows: “That no further agreement or contract of any kind or character has been entered into by the parties, and that the first agreement, as modified by the second and third agreements, is subsisting and in full force and effect. ’ ’ But this was not an allegation essential to the cause of action predicated upon the contract. It simply anticipated a defense and sought to avoid it. It could have been stricken out upon motion; and even though it had not been answered—because it was a nonessential allegation—it would not have been admitted. Moreover, as such an allegation tenders no issue an answer to it would join no issue. (Boles v.