Benham v. Connor

Belcher, C. This action was brought to recover the amount due on three negotiable promissory notes, each of which was separately set out in the complaint, and alleged to have been executed by the defendant, and to have been indorsed by the payee thereof to the plaintiff. The complaint was duly verified. In due time the defendant filed an unverified answer to the complaint, containing a general denial of all its allegations, and setting up as a counterclaim an alleged cause of action against the payee of two of the said notes. Thereafter, the plaintiff served notice on the defendant that on the twenty-ninth day of April, 1892, he would move the court to strike from the files the said answer, and for judgment on the pleadings, upon the ground that the said document was unverified, and was sham and irrelevant.

On April 28th the defendant served on the attorneys for the plaintiff a properly verified amended answer, but they refused to admit service of the same. This answer contained no denials whatever, but set up the same counterclaim as that found in the original answer, and also a second counterclaim, consisting of another alleged cause of action against the payee of the said two notes. On April 29tli defendant filed his amended answer among the papers in the case, without obtaining any leave of the court to serve or file the same. Thereafter, on the same day, plaintiff’s motion came up for hearing, and the fact of the service and filing of the said amended answer was then brought to the knowledge and attention of the court by counsel for defendant. After due consideration, the court granted the motion for judgment on the pleadings, and judgment was accordingly entered in favor of the plaintiff as prayed for.

From that judgment the defendant has appealed, and it is claimed that the facts above stated show errors in the action of the court which entitle him to a reversal. This claim cannot, in our opinion, be sustained.

1. The code provides that when the complaint is ver[171]ified the answer must also be verified, except in certain specified cases, of which this is not one. (Code Civ. Proc., sec. 446.) The original answer was not verified, and for that reason counsel for appellant concede that plaintiff would have been entitled to judgment on the pleadings if no other answer had been filed.

The only question, then, is as to the amended answer. Assuming that that answer can be considered, it will be observed that it sets up no defense whatever to one of the notes sued on, and the only defenses to the other two notes are the alleged counterclaims. And it will also be observed that there is no averment, or anything to indicate, that either of the causes of action set up as a counterclaim arose before the assignments of the said notes to the plaintiff, or before defendant had notice of such assignments.