Reinert v. Proud

California Court of Appeal Jun 28, 1935 No. Civ. 10009Published

Before: Fricke

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Holding. The court held that a defendant's denial based on lack of information or belief is sufficient under the amended Code of Civil Procedure section 437, but that the plaintiff's possession of an endorsed promissory note establishes a prima facie case of ownership that requires a finding in the plaintiff's favor absent contrary evidence.

Issues

Whether a denial based on lack of information or belief is sufficient under section 437 of the Code of Civil Procedure.
Whether possession of an endorsed promissory note constitutes prima facie proof of ownership sufficient to shift the burden of proof.

Disposition. reversed

Quotations verified verbatim against the opinion

“We believe that, under section 437 as it now reads, the denial in the answer here is sufficient to raise an issue as to the matters alleged in paragraph IV of the complaint.”

“in the total absence of proof to the contrary, there was sufficient proof herein to require the trial court to find in favor of appellant on the issue as to the assignment of the note”

FRICKE, J.,

pro tem.

Action by appellant for balance due on a promissory note secured by a trust deed.

The first point urged is that no issue was raised as to the allegation of paragraph IV of the complaint “that on the 18th day of January, 1930”, Jane J. Rosenquist assigned without recourse her entire interest in the note and trust deed to the plaintiff, and that “since said 18th day of January, 1930, the plaintiff has been and now is the sole owner and holder of the said note and deed of trust”. The answer is as follows: “That defendant has no information or belief sufficient to enable him to answer the allegation of paragraph IV of said complaint and basing his denial upon that ground he denies the allegation therein contained and the whole thereof.” Appellant contends that this form of denial constitutes a negative pregnant and is in effect an admission that the facts pleaded occurred and is merely a denial that they occurred on the particular date named, and that the finding of the trial court that no assignment was made is error.

This contention is not based upon the denial being based upon the lack of information or belief, but challenges the validity of a general denial of the allegations of a paragraph

[171]

of the complaint and the whole thereof. The decision of the question depends upon the proper construction of section 437 of the Code of Civil Procedure as amended in 1927. By that amendment the previously existing requirement that the denial of each allegation controverted must “be specific” ceased to exist and there was added to the section the provision that “The denials of allegations controverted may be stated by reference to specific paragraphs or parts of the complaint; or by express admission of certain allegations of the complaint with a general denial of all the allegations not so admitted; or by a denial of certain allegations upon information and belief, or for lack of sufficient information and belief, with a general denial of all allegations not so denied or expressly admitted.” In

Del Fanta

Sherman,

Reinert v. Proud

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FRICKE, J.,

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