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undertake that he should pay his debts to other people. It follows from the foregoing that any defense which the town of Nevadaville could successfully interpose as a bar to an action by Bartle for his salary is equally available against the plaintiff as an answer to the process of garnishment. Since the amount in the hands of Bartle exceeded his claim for salary, the answer setting forth these facts was sufficient to defeat the garnishment. The judgment of the county court discharging the garnishee was therefore correct, and it is accordingly affirmed.

(14 Colo. 58)

JACKSON v. HAMM.

(Supreme Court of Colorado. Jan. 20, 1890.) ASSIGNMENT-NOTICE TO DEBTOR-ACTION BY AS

SIGNEE.

1. Notice to the debtor by the assignee of a chose in action is not necessary to complete the assignment, where there is no controversy between different assignees or attaching creditors of the fund assigned.

2. The assignee of a claim against the receiver of a railway company, having obtained permission from the proper court, may, under the Code, bring suit in his own name, and, though the assignment be indorsed to another, he may still maintain the action in his own name so long as he retains possession of the instrument of assignment, and may cause the record to be amended by adding the name of the indorsee as the use party, who will thereafter be entitled to control the proceedings, and will be bound by the judgment. (Syllabus by the Court.)

Appeal from Chaffee county court.

was in any way connected with his contract or claim for services, or that there had been any garnishment proceedings therefor. This defense was not attempted at the trial. No evidence was offered in behalf of defendant in either court, and nothing is claimed on this ground upon this appeal. It is urged, however, by appellant's counsel, that, as there is nothing in the record to show that the receiver had notice of the assignment of Lynch's claim to plaintiff before the bringing of this suit, therefore the assignment was not complete, and that this action cannot be maintained. If this were a controversy between different assignees or attaching creditors of the same chose in action, this point might require greater consideration. So, also, this appeal might be more difficult of determination but for the fact that the assignment of errors is restricted to the grounds stated in the motions to dismiss and for nonsuit, respectively, and that even some of these grounds are abandoned in the brief and argument of counsel. Neither of the aforesaid motions question the sufficiency of the evidence generally, nor the merits of the claim sued on, as above stated. Smith v. Christian, 47 Cal. 18; 2 White & T. Lead. Cas. 794 et seq.; Clodfelter v. Cox, 1 Sneed, 330; Moore v. Gravelot, 3 Ill. App. 442. In this action there are no third parties making claim to this fund, nor did defendant interpose any defense of that kind. Besides, plaintiff had given notice of the assignment to

E. O. Wolcott and Watson & Libby, for Gilluly, the financial agent of the railway appellant. J. W. Hamm, for appellee.

ELLIOTT, J. This action was commenced by John W. Hamm, as plaintiff, against William S. Jackson, as receiver of the Denver & Rio Grande Railway Company, before a justice of the peace, to recover a certain sum of money due to one E. D. Lynch, an employe of said railway company, for services. Lynch had assigned his claim to plaintiff, as follows: "Salida, Colo., February 27, 1886. J. W. Gilluly, Esq., Cashier D. & R. G. Ry. Co., Denver, Colo.: Please pay, or cause to be paid, to John W. Hamm, the sum of seventy-five dollars and fifty cents, the amount due to me by said railroad company for services; and this shall be your receipt for same in full. E. D. LYNCH." Judgment for the amount of the claim was rendered in the justice's court in favor of plaintiff. The defendant appealed to the county court, where the same judgment was again rendered. Defendant now appeals to this court.

That Jackson was the receiver of the railway company, that Gilluly was its cashier and disbursing agent, that the wages were due to Lynch as sued for, and that Lynch assigned his claim to plaintiff, are in no way controverted by the brief and argument of appellant under its assignment of errors. Gilluly refused payment to Lynch on the ground that he had not paid his board-bill to one A. L. Dodge; but it does not appear that the supposed indebtedness of Lynch for board

company, before the commencement of the action, who made no objection thereto, except that Lynch had not paid his board to Dodge; and, moreover, plaintiff had obtained an order from the United States circuit court, which appointed the receiver, to bring this very action before instituting the same. The order specified the plaintiff as the assignee of the claim of $75.50 due Lynch, an employe of said railway company. It appears that plaintiff gave his own due-bill to Lynch for the amount of his claim, in consideration of the assignment, and that Lynch assigned this due-bill of plaintiff to one J. M. King, and in this way got his money. It appears, also, that plaintiff, by indorsement, made the assignment which he had received from Lynch payable to King or his representatives, and caused the record to be amended so as to read, "John W. Hamin, for the use and benefit of J M. King." It does not appear that these matters in any way prejudiced the defendant. The cause of action remained unchanged. The defense of the unpaid boardbill or any other subsisting equity in favor of defendant against Lynch was as available against Hamm, or even King, as the assignee of Lynch, as it would have been if Lynch had been plaintiff; besides, there was no plea or offer to prove any defense as against Lynch. 1 Pars. Cont. 229; Code Civil Proc. Colo.

4; 2 White & T. Lead. Cas. 780811; Reeve v. Smith, 113 Ill. 47. Hamm. being the real party in interest, was entitled

and request, is charged. The remaining counts are all based upon claims against the defendants in favor of third parties, duly as

to sue in his own name by the express provision of the Code, as well as by the order of the circuit court which he had obtained. The indorsement to King of the Lynch assign-signed to plaintiffs. Some of these assigned

ment did not necessitate a dismissal of the action by Hamm, so long as he retained possession of the instrument, and while his own absolute and unconditional obligation which he had given in exchange therefor was still outstanding. But even if King did become the real party in interest by such indorsement, in the absence of anything in the record to the contrary, we must presume that the adding of his name as the use party was duly authorized; and hence, upon familiar principles, he was thereafter entitled to control the proceedings, and was bound by the judgment. Thus the defendant and the railway company are abundantly protected. 1 Greenl. Ev. § 535; Chapman v. Shattuck, 3 Gilman, 49; Morris v. Cheney, 51 Ill. 451; Chadsey v. Lewis, 1 Gilman, 153; Van Camp v. Commissioners, 2 Pac. Rep. 721; 1 Pars. Cont. 223-230; Jessel v. Insurance Co., 3 Hill, 88; Palmer v. Merrill, 6 Cush. 282; Bartlett v. Pearson, 29 Me. 9; Elliot v. Threlkeld, 16 B. Mon. 341. This disposes of the assignment of errors, so far as they have been presented by counsel in their briefs, in favor of appellees. The judgment of the county court is accordingly affirmed.

(14 Colo. 61)

NICHOLS et al. v. JONES et al. (Supreme Court of Colorado. Jan. 24, 1890.) VERIFICATION OF PLEADINGS-WAIVER-STRIKING

OUT ANSWER.

1. Where the complaint is verified by one of plaintiffs' attorneys, but no reason why it is not verified by the parties is stated, as required by the Code of Colorado, such defect is waived when defendants make no objection to the verification in the court below, and file an answer, duly verified, as to some of the defenses, and not verified as to others.

2. Where the answer contains several defenses, some of which are verified and others not, it is not error to strike out the unverified portion of the answer, with leave to defendants to further answer as to such portion, if they should so desire.

3. Where a defense set up in the answer is ordered stricken out, which by some error is not done, and the court afterwards correctly treats the defense as insufficient to raise an issue, defendants cannot complain.

Appeal from districi court, Gunnison county.

The transcript of record does not contain the original complaint filed in the district court. By the amended complaint, A. E. Jones and W. J King, partners doing business under the firm name and style of Jones & King, were made parties plaintiff, and Ira Nichols and H. N. Nichols and S. L. Townsend, partners under the firm name and style of Nichols, Townsend & Co., defendants. This pleading contains 26 counts. In the first count the copartnership of the defendants is duly alleged. In this count the sale and delivery of goods, wares, and merchandise to the value of $217.85, by plaintiffs to defendants, at the latters' special instance

In

claims are for goods, wares, and merchandise sold the defendants; others for work and labor performed at the special instance and request of the defendants; and still others are based upon certain due bills alleged to have been given by defendants to various persons for labor performed, etc. The verification to the complaint was made by Dexter T. Sapp, one of the attorneys for plaintiffs in the cause, the affidavit showing that the facts alleged in the pleading were within his knowledge. The defendant Townsend made default. the answer filed by the other defendants the allegation of partnership above set out is not controverted, but all other allegations of the complaint are denied. That portion of said answer which was in response to the fourth, seventh, eighth, and ninth causes of action in the complaint was duly verified. As to the remaining counts in the said amended complaint, the answer was not verified. After this answer was filed, plaintiffs moved to strike out the portions of said answer which were not. verified. After argument of counsel, the court sustained said motion, and struck out all that portion of said answer that has reference to the first, second, fifth, eighth, and tenth to twenty-seventh causes of action in plaintiffs' complaint. The above order gave the defendants time in which to further answer said causes of action, if they so desired. The defendants having failed to answer in accordance with said order, default was afterwards taken against them upon all counts unanswered, and also upon the third cause of action, to which an unverified answer remained upon file. A jury being expressly waived by the parties, the cause was tried by the court. Upon such trial the court found the issues upon the fourth, seventh, eighth, and ninth causes of action in favor of plaintiffs, and gave judgment accord ingly. Upon the remaining counts in the complaint, the court rendered judgment in accordance with the prayer of the complaint, to which findings and judgment the defend. ants, Ira Nichols and H. N. Nichols, having duly excepted, bring the case here upon ap peal.

Gullett & Barnes and H. L. Karr, for appellants.

HAYT, J. The first six assignments of error relate to the striking out of certain portions of the defendants' answer for the reason that the same was unverified, and the entry of judgment upon a certain cause of action by default. The action of the court was based upon the assumption that the complaint was properly verified, hence requiring a sworn answer thereto. It is now contended that the verification to the complaint was defective, in that the reasons why it was made by the attorney, and not by one of the parties to the action, were not stated therein as required

by the Civil Code. If such verification was defective in the particular mentioned, we think such defect was waived by the subsequent conduct of the defendants, as, instead of objecting to the form of the affidavit by motion or otherwise in the court below, they filed an answer, duly verified as to certain defenses, and not verified as to others. The verification was equally applicable to all portions of the complaint, and the defendants ought not to be permitted to treat it as sufficient for some counts in the complaint and insufficient as to others.

Under the circumstances, we think there was no error in requiring the defendants to verify each defense relied upon, and the order striking out the unverified portion of the answer was fully warranted. In such order ample time was given the defendants in which to plead to the causes of action remaining unanswered as the result of sustaining the motion to strike out, and we cannot doubt that properly verified answers would have been filed within the time, if the defendants desired a trial upon the merits.

The record does not affirmatively show that the defense to plaintiffs' third cause of action was stricken out, although such defense was unverified, and was embraced in plaintiffs' motion to strike out. The same being directed to all that portion of the pleading that was "subsequent to the jurat," and this defense appearing in the pleading after the jurat, it should have been stricken out in response to such motion. And the court appears to have treated it thereafter as though this had been done, by entering judgment by default upon the cause of action to which such defense was interposed. The failure to have the order of the court show the ruling in reference to such defense perhaps resulted from a clerical error. Be this as it may, however, the action of the court thereafter, in treating such defense as insufficient to raise any issue, and entering judgment by default upon said cause of action, only accomplished the same result in a different way, and this, under the circumstances, in no way prejudiced the defendants; hence they are not in a position to complain thereat. Drum v. Whiting, 9 Cal. 422. The remaining assignments of error relate to the admission of certain testimony, the findings of the court, and the judgment against the defendants. We think the rulings of the court in reference to the admissibility of the evidence objected to were correct. The evidence introduced on behalf of the plaintiffs is clearly sufficient to support the findings of the court in their favor. No evidence having been offered by the defendants, these findings cannot be disturbed. The judgment is accordingly affirmed.

(14 Colo. 65)

PATRICK V. MCMANUS. (Supreme Court of Colorado. Jan. 31, 1890.) SHAM PLEAS-MOTION TO STRIKE OUT.

1. It is the policy of the Code to suppress falsehood and secure truth in pleadings, and as one

means of securing such result authority for striking out sham answers and defenses is given.

2. A counter-claim, if sham, may be stricken out upon motion.

3. The essential element of a sham plea is its falsity.

4. The power to strike out must, however, be exercised with caution. Under it the court cannot determine the truth or falsity of a plea upon conflicting evidence.

(Syllabus by the Court.)

Appeal from district court, Arapahoe county.

Action upon a promissory note bearing date April 20, 1885. The note, which is for $1,000 and interest, is set forth in hæc verba in the complaint. This pleading also contains the following allegation: "That afterwards, on the 3d day of August, 1886, at Denver, Colo., plaintiff requested defendant to pay said sum of $1,000 and interest; that defendant did not nor has not since paid said sum of money, or any part thereof. Prayer for judgment for $1,000, together with interest from 20th of April, 1885, at 8 per cent. per annum, and costs. In his answer the appellant, after denying all allegations of the complaint, pleads payment, and for a further answer alleges: "That between the 20th day of April, A. D. 1885, and the date of filing said complaint, the defendant laid out and expended for the use and profit of the said plaintiff, at her request, the sum of fifteen hundred dollars in cash." The pleading closes with the the following prayer for relief: "Wherefore defendant prays judgment against the plaintiff for the sum of five hundred dollars, together with interest thereon, from and after the date of the commencement of this suit; and the defendant prays that said promissory note be delivered up to the court for cancellation, and that he have his costs in this suit most unjustly expended."

After this answer was filed, plaintiff moved to strike the same from the files, and for judgment upon the pleadings, for the reason that "the said answer is a sham answer, as fully appears by the answer itself and by the affidavits hereto annexed and made a part of this motion. The defendant appeared, and resisted this motion, and filed a counter-affidavit. The affidavits submitted upon the hearing of plaintiff's motion were, in substance, as follows: Affidavit of John F. Shaffroth: That he is one of plaintiff's attorneys; that on July 31, 1886, he sent notice to defendant that his firm had for collection the note sued on, and requesting defendant to call and pay the same; that on or about August 3, 1886, defendant called; that defendant was shown said note, and requested to pay the same; that he admitted the note to be his, and that he owed the same, but could not pay the same then, but would do so if granted an extension of five or six months. Affidavit of Camilla S. McManus: That she is plaintiff; that on April 20, 1885, at Pass Christian, Miss., defendant made the note sued on, and delivered same to plaintiff for consideration of $1,000; that defendant, nor any one for

him, has ever paid said note, or any part | the courts have not adopted any uniform rule thereof, or the interest thereon; that defendant. neither between the 20th day of April, 1885, and date of bringing this suit, nor at any other time, laid out or expended for use or benefit of athiant, or at her request, the sum of $1,500, or any other sum whatever; that said promissory note was, at the time of commencement of said action, due and unpaid, and still remains so. Affidavit of defendant: That he is defendant; that he did promise to pay said note to Mr. Shaffroth, but affiant further says that he at that time claimed to have set-offs against said note more than sufficient to pay the same in full, and that if said note was sued on affiant would set up all such claims in defense; that whether or not such counter-claims constituted a good cause of action against plaintiff is a question of law and fact for the court and jury to pass upon; and that defendant makes such counter-claim, and insists upon the trial of the same, for the purpose of obtaining a judgment against said plaintiff; that at said interview affiant stated to Mr. Shaffroth that said note had been paid by affiant's wife. At the hearing the court sustained said motion, and entered judgment for the plaintiff in accordance with the prayer of the complaint. The defendant, having duly excepted, brings the case here by appeal.

J. N. Hughes, for appellant. J. F. Shaffroth, for appellee.

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HAYT, J., (after stating the facts as above.) The answer filed in the cause was stricken out as a sham answer, and judgment thereupon entered for the plaintiff for the amount claimed in the complaint. Should such action of the court be sustained? Whether the pleading was objectionable for other reasons than the one urged is not material. Appellee's motion was based solely upon the claim that the answer was a sham one. That part of the Code relating to sham answers reads as follows: "Sham and irrelevant answers and defenses, and so much of any pleading as may be irrelevant, redundant, immaterial, or insufficient, may be stricken out upon motion, and upon such terms as the court, in its discretion, may impose. Section 61. "Sham pleading, defined by Chitty, is the pleading of a matter known by the party to be false, for the purpose of delay or other unworthy object. 1 Chit. Pl. 541. Bliss, in his work upon Code Pleadings, says that a “sham pleading" is one good in form and false in fact. Section 422. În Bouvier's Law Dictionary a "sham plea" is said to be one entered for the mere purpose of delay, concerning a matter which the pleader knows to be false. It will be seen, from these definitions, that the essential element of a sham plea is its falsity; and yet it is evident that not every false plea can be stricken out upon motion supported by athidavit, as this would be ta substitute a trial to the court upon affidavits for a jury trial. An examination of decided cases shows that

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in reference to the nature of answers that may be stricken out upon motion as sham. In Brown v. Lewis, 10 Ind. 232, it was decided that "if an answer is valid on its face, and no facts exist peculiarly within the knowledge of the court showing it to be a sham defense, it should not be stricken out upon affidavit of its falsity." But in a subsequent case, it appearing that the defendant in response to interrogatories conceded his answer to the complaint to be false, it was held that it should be stricken out as sham. Beeson v. McConnaha, 12 Ind. 420. And this rule subsequently received the sanction of express statutory enactment. Lowe v. Thompson, 86 Ind. 593. In California a plea of payment to a suit upon a promissory note was stricken out by the trial court upon affidavits showing the falsity of such plea, and the mala fides of the defendants in pleading it, and such action was sustained upon appeal. Gostorfs v. Taafe, 18 Cal. 386. In People v. McCumber, 18 N. Y. 315, a defense consisting of denials of knowledge or information sufficient to form a belief as to several matters, and a qualified denial in direct terms of another allegation of the complaint, was stricken out as sham, the court holding that a defense otherwise good may, if false, be stricken out as sham, although duly verified, and this may now be considered as the general practice in New York. See Corbett v. Eno, 13 Abb. Pr. 65. So, also, in Minnesota it has been repeatedly held that a sham answer, although verified, may be stricken out upon proof of its falsity. Hayward v. Grant, 13 Minn. 165, (Gil. 154;) Barker v. Foster, 29 Minn. 166, 12 N. W. Rep. 460; Lumber Co. v. Richardson, 31 Minn. 267, 17 N. W. Rep. 388. In Torrence v. Strong, 4 Or. 39, it was decided that an answer good in form, and containing facts sufficient to constitute a defense, cannot be gotten rid of by demurrer, but that it may be stricken out as false. Tharin v. Seabrook, 6 S. C. 113, is authority for saying that objection to sham defenses ordinarily presents a question of fact to be determined on affidavits. If an answer is manifestly false, it may be stricken out as sham, although this power should be sparingly used, and only in cases free from doubt. It is the policy of the Code "to suppress falsehood and secure truth in the pleadings." and, as one means of securing such result, authority for striking out sham answers and defenses is given. In counties where the dockets are overburdened with causes, the temptation to interpose sham answers, for the purpose of delay only, is great; and when it clearly appears that such answers are false in fact, according to the great weight of authority and reason, the court may, upon motion, strike them out. This power must, however, be exercised with extreme caution; otherwise a trial to the court upon atidavits might be substituted for a jury trial. It cannot rightfully be exercised for the purpose of determining the truth or falsity of a defense

upon conflicting evidence.

The inquiry ought not to be extended in such cases further than may be necessary for the court to determine that such a conflict in fact exists; but where, as in this case, the material averments of the complaint are directly supported by affidavits positive in form, we think the defendant has no right to complain of an order requiring him to support his unverified answer by an atidavit of merits, and, upon failure to comply therewith, to have his pleading stricken from the files. And it would make no difference if a portion of this answer be treated as a counter-claim, as the Code provision is directed not only against sham and irrelevant defenses, but to answers as well, and the counter-claim must be considered as a part of the answer. Any other construction would permit defendants to evade the consequences of the act, and delay judgment, by interposing sham counterclaims instead of sham defenses. It requires no argument to show that the affidavit of defendant in support of his answer in this case does not amount to an affidavit of merits. It does not deny the execution of the note. On the contrary, the due execution thereof is admitted under the pleadings, a copy of the note appearing in the complaint, and the answer thereto not having been verified. The affidavit does not state that the note has been paid.

It merely alleges that on a prior occasion Patrick claimed that his wife had paid it. Neither does it contain an averment that plaintiff has a set-off of any kind or nature whatsoever, affiant contenting himself with the statement that he at one time claimed to have set-offs more than sufficient to pay the note in full, and that if sued he would set the same up in defense. This so-called affidavit of merits is clearly insufficient; it fails to state any fact showing, or tending to show, the truth of the answer. It does not even state that the answer is interposed in good faith, or that his attorney, after being informed of the facts, has advised him that he has a meritorious defense to the action. The affidavit is so entirely lacking in the essential requisites of such a paper that the court below, in deference to well-established rules, was bound to disregard it in the determination of plaintiff's motion. Wedderspoon v. Rogers, 32 Cal. 569; Kaufman v. Mining Co., 105 Pa. St. 541; McCracken v. Congregation 111 Pa. St. 106, 2 Atl. Rep. 94; King v. Stewart, 48 Iowa, 334. The judgment of the court below is accordingly affirmed.

(42 Kan. 762)

HOLMDEN et al. v. JANES. (Supreme Court of Kansas. Feb. 8, 1890.) CONTRACTS-CONSIDERATION-PROMISE OF HEIR.

Where G. entered into a written contract with J. and H. to sell and convey to them a tract of land, and the grantees paid to him the full purchase price, a part of which was the transfer and possession of 24 acres of land, and afterwards G.'s title was extinguished to the tract he had agreed to convey, and subsequently his son, who, as an heir of his father, had received a share of the 24

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HORTON, C. J James R. Greer purchased the land in controversy from Johnson & Son, who held an equitable interest therein. On the 18th day of October, 1873, he entered into a written agreement with Heman Janes and Ed P. Holmden to sell or exchange this land to them for $190 in money, and the conveyance from them of 24 acres of land on Mill creek, in Wabaunsee county. James R. Greer was paid the $190, and given possession of the 24 acres of land. In 1876, there being default in the payment to the railroad company from Johnson & Son for the land in dispute, the railroad company foreclosed the contract, and purchased the premises at a judicial sale. On October 23d of the same year the railroad company'sold and conveyed the premises to Joseph D. Greer, the son of James R. Greer, who had entered into the written agreement with Janes and Holmden. After Joseph D. Greer had obtained title to the land, he promised to carry out the written agreement of his father with Janes and Holmden. Upon the argument for a rehearing it was earnestly insisted by the counsel for M. W Janes, the plaintiff below, that the promise or agreement of Joseph D. Greer to carry out the contract of James R. Greer, deceased, with Janes and Holmden, of October 18, 1873, was without consideration, and therefore void, and not binding upon any one. Counsel say that "Joseph D. Greer was under neither legal nor moral obligation to carry out that agreement made by his father. His title was not derived through his father. His father's rights and equities had long before been swept away and ended, and he came in, as any stranger might have come in, and purchased directly from the railroad company, as any stranger might have done, and was no more bound by his dead father's contract than any stranger would have been." If the premises of counsel were true, we are inclined to think that the promise or statement to James D. Greer would not amount to anything. It appears, however, from the record, that his father James R. Greer, received of Janes and Holinden $190, and also the possession of 24 acres of land under the written contract for a conveyance of this land to them. James R. Greer paid taxes on the 24 acres of land, and it descended to his heirs, and was by them divided. When an exchange of lands was made by E. V. Holmden and Heman Janes, Janes made a conveyance of the land in con

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