swers, or at most to hold that, if improper, the only mode of correction is by a motion to make them more definite and certain; in other words, they are sufficient to raise the intended issues. It cannot be said, however, that the question has been settled by authority, or that this species of denial has become an established method of pleading wherever the reformed procedure prevails. The few cases which touch upon the matter will now be cited. In an action upon a policy of life insurance, the answer was of the kind mentioned, and concluded as follows: that "the defendant denied each and every allegation of the complaint not therein expressly admitted or denied." The Court of Appeals said of this answer: "It is clear, both upon principle and authority, that under a general or specific denial of any fact which the plaintiff is required to prove to maintain the action, the defendant may give evidence to disprove it. If an answer containing denials of the allegations of the complaint, except as thereinafter stated, is rendered indefinite, uncertain, or complicated, the remedy is by motion to make the answer more definite, and not by exclusion of evidence on the trial." 2 A similar answer, ending with a denial of each and every allegation of the complaint except as herein admitted or stated," was held by the same court to be good and to raise an issue.3 1 Wheeler v. Billings, 38 N. Y. 263. 2 Greenfield v. Mass. Mut. L. Ins. Co., 47 N. Y. 430, 437, per Grover J. An expression in this quotation indicates a certain misconception on the part of the learned judge. A general denial of a fuct is something unknown in the system of pleading established by the codes. See also Leyde v. Martin, 16 Minn. 38; Becker v. Sweetzer, 15 Minn. 427, 434; Kingsley v. Gilman, 12 Minn 515, 517, 518, which show that this form of denial is fully approved by the Minnesota court. 3 Youngs v. Kent, 46 N. Y. 672; and see Allis v. Leonard, 46 N. Y. 688. That this form of denial is proper, and sufficiently raises issues upon the allegations not admitted, seems to be now settled, at least in several of the States. Walsh v. Mehrback, 5 Hun, 448; Calhoun v. Hallen, 25 id. 155; Penn. Coal Co. v. Blake, 85 N. Y. 226, 235; St. Anthony Falls Co. v. King Bridge Co., 23 Minn. 186; Ingle v. Jones, 43 Iowa, 286; Burley v. Ger man-Am. Bk., 111 U. S. 216; Griffin v. L. I. R. Co., 101 N. Y. 348; Crane v. Crane, 43 Hun, 309; Owens v. R. Hudnot's Pharmacy, 20 Civ. Pro. Rep. 145; see Clark v. Dillon, 97 N. Y. 370; Davenport v. Ladd, 38 Minn. 545. [The following forms of general denial have been held sufficient: "Each and every material allegation, statement, matter, fact, and thing in said complaint contained, and not hereinafter admitted:" Althouse v. Town of Jamestown (1895), 91 Wis. 46, 64 N. W. 423. "Every allegation in the complaint not admitted in the answer : Childers v. First Nat. Bank (1896), 147 Ind. 430, 46 N. E. 825. "Each and every allegation and averment contained in plaintiff's complaint herein which is not hereinafter specifically admitted or qualified: " Mattoon v. Fremont, etc. R. R. Co. (1894), 6 S. D. 301, 60 N. W. 69. "Each and every allegation therein contained, and not hereinafter specifically denied, admitted or explained: " State $ 528. * 637. Facts, not Conclusions of Law, should be denied. The complaint or petition, in addition to the facts from which the right of action arises, sometimes contains the conclusions of law which result from those facts, such as the indebtedness of the defendant, his liability in damages, and the like. It is a fundamental principle of the pleading authorized by the codes, that these averments of fact must be denied, and not merely the legal conclusion therefrom; a traverse of the latter without one of the former is a nullity, and creates no issue.1 When the issuable facts are denied, a denial of the conclusions of law is unnecessary, but would certainly be harmless. In this respect, the reformed procedure has introduced a new feature into the science of pleading. It is often said, I am aware, by writers of authority even, that, under the common-law methods, the facts were always, and the legal conclusions were never, to be traversed. ex rel. v. City of Pierre (1902), 15 S. D. In Hardy v. Purington (1894), 6 S. D. 382, 61 N. W. 158, the court said: "An answer [in mandamus], which denies 'each and all the allegations in the affidavit contained, except such as are hereinafter admitted or qualified,' though not a form of pleading to be encouraged, has grown into such frequent use that it would be unwise and unfair to litigants and attorneys for this court to hold, without premonition, that such an answer, unassailed by motion or otherwise, constitutes no denial. If such an answer leave the plaintiff in doubt as to what allegations of his complaint are intended to be denied and what admitted, the answer is subject to a motion to make more definite and certain." But this state "Where a general denial in an answer is qualified by the pleading of special defences in the nature of confession and avoidance, evidence of other defences of a like nature is inadmissible, although, in the absence of such pleading, such evidence would have been admissible under the general denial: Ball v. Beaumont (1901), 63 Neb. 215, 88 N. W. 173. On the other hand, the following forms have been held insufficient: "Every material allegation of the complaint: Mead v. Pettigrew (1899), 11 S. D. 529, 78 N. W. 945; Burke v. Inter-State Savings Ass'n (1901), 25 Mont. 315, 69 Pac. 879; Hamilton v. Huson (1898), 21 Mont. 9, 53 Pac. 101. "Each and every allegation and statement therein which is and are in any way inconsistent with the allegations in the petition" and " especially denies all new matter pleaded" in the answer: Young v. Schofield (1895), 132 Mo. 650, 34 S. W. 497. "Each and every allegation contained in the answer inconsistent with the statements in plaintiff's petition:" Gross v. Scheel (1903), - - Neb. 93 N. W. 418; Dezell v. Fidelity & Casualty Co. (1903), 176 Mo. 253, 75 S. W. 1102: an answer denying "each and every other allegation in said petition not specifically admitted."] 1 [Heydenfeldt v. Jacobs (1895), 107 Cal. 373, 40 Pac. 492.] ment is clearly inaccurate. In some of the most common forms of declaration in constant use, the leading averment was that "the defendant is indebted," a mere inference of law; and the general issue might be, "he is not indebted," or "he was never indebted," which was certainly nothing but the denial of a legal conclusion. All this has been swept away by the codes, and every trace of it left in the modern practice is in direct opposition both to the spirit and to the letter of the statute. A denial of indebtedness or of liability, without denying the allegations of fact from which the indebtedness or liability is claimed to have arisen, is a nullity; it raises no issue, and will be held bad on demurrer, as is shown. by the subjoined cases: In an action upon a promissory note, the answer admitted the execution of the note, and denied that the defendant owed the debt to the plaintiff. A demurrer to this answer was sustained, the court saying: "This answer under the former mode of pleading would have amounted to a plea of nil debet, and would not have been good, as the suit was brought upon a note in writing having the dignity of a specialty; and we are of opinion that the answer was not sufficient under the present practice. It was not sufficient to state that defendant did not owe the debt." All the cases, with hardly an exception, are to the same effect: as in an action on a note, an answer saying that"the defendants do not owe and ought not to pay the note, for they do not admit the regular protest thereof and notice," raised no issue; 2 also where, in an action for goods sold and delivered, the answer "denies that the defendant is indebted to the plaintiff as stated in the petition;" and where, in an action on a note, the answer simply denied indebtedness to the plaintiff as claimed in the petition, or in any other sum or amount whatever.1 175. 1 Haggard v. Hay's Adm., 13 B. Mon. monwealth, 13 Bush, 435; Louis v. Brown 7 Ore. 326; Indianapolis, B. & W. R. Co. v. Risley, 50 Ind. 60; Hunter v. Martin, 57 Cal. 365; Hintrager v. Richter (Iowa, 1892), 52 N. W. Rep. 188; Carpenter v. Ritchie, 2 Wash. 512. Denials of indebtedness: Buller v. Siddell, 43 Fed. Rep. 116; Callanan v. Williams, 71 Iowa, 363; Watson v. Lemen, 9 Colo. 200; Gale v. James, 11 Colo. 540; Heath v. White, 3 Utah, 474. See McLaughlin v. Wheeler (S. Dak. 1891), 47 N. W. 816, 818. 2 Clark v. Finnell, 16 B. Mon. 329, 335. 3 Francis v. Francis, 18 B. Mon. 57; and see Nelson v. Murray, 33 Cal. 338; Curtis v. Richards, 9 Cal. 33; Wells v. McPike, 21 Cal. 215; Higgins v. Germain. 1 Mont. 230; Skinner v. Clute, 9 Nev. 342, 4 Morton v. Coffin, 29 Iowa, 235, 238. For further illustrations of the rule stated in the text, see Man. Nat. Bank v. Russell, 6 Hun, 375; Starr v. Cragin, 24 id. 177; Murray v. N. Y. L. Ins. Co., 85 N. Y. 236, 239; Kentucky River Nav. Co. v. Com [Spencer v. Turney (1897), 5 Okla. 683, 49 Pac. 1012; Aultman & Taylor Co § 529. * 638. Illustrations. The same is true of any other denials of mere inferences or conclusions of law. Thus, in a suit upon a note given to the plaintiff, a married woman, and made expressly payable to her on its face, a defence that the "note is not her separate property," and a denial that she is the legal owner and holder thereof, were both held nullities, and struck out on motion. The defence, in an action to foreclose a mortgage, "that D. [the mortgagor] was regularly and duly discharged from all his debts, including that to the plaintiff, under proceedings in insolvency," was held not to be new matter requiring a reply, "but only a conclusion of law and not of fact," and not to create an issue.2 In an action to recover for injuries caused by the negligence of the defendant, the complaint, after stating the necessary facts showing the negligent omissions, and the consequent destruction of the plaintiff's property, concluded, "to his great damage, to wit, in the sum of $800." The answer simply denied" that the plaintiff had suffered damage in the sum of $800." This denial raised no issue.3 The § 530. *639. Denial of Conclusions of Law is Unnecessary. converse of the rule illustrated by the foregoing cases is also true. If the answer denies the material facts averred by the plaintiff, or alleges material facts constituting a defence of new matter, it need not deny the plaintiff's conclusions of law, or state any conclusions of law as the inference from the facts which it has pleaded. Thus, in an action upon a contract, the answer alleged v. Mead (1901), 109 Ky. 583, 60 S. W. 294; Taylor v. Purcell (1894), 60 Ark. 606, 31 S. W. 567.] owner and holder of the note and mortgages creates no issue: Clemens v. Luce (1894), 101 Cal. 432, 35 Pac. 1032. A de 1 Frost v. Haford, 40 Cal. 165, 166; nial by defendant in an action of ejectFelch v. Beaudry, 40 Cal. 439. 2 Christy v. Dana, 42 Cal. 174, 178. 3 Huston v. Twin & C. C. Turnp. Co., 45 Cal. 550; Higgins v. Wortel, 18 Cal. 330. In an action to enforce a lien upon defendant's land, an answer which, without controverting any of the facts alleged, simply denied that the plaintiff had any lien, was held to raise no issue. Bradbury v. Cronise, 46 Cal. 287. See, however, Simmons v. Sisson, 26 N Y. 264, 270, 273. ment that his possession is wrongful raises no issue: Rhoades v. Higbee (1895), 21 Colo. 88, 39 Pac. 1099. A valid denial is not vitiated by conclusions of law alleged in connection therewith: Fitzpatrick v. Simonson Bros. Co. (1902), 86 Minn. 140, 90 N. W. 378. A denial that the set-off constituted a defence, raises no issue: Richardson v. Doty (1895), 44 Neb. 73, 62 N. W. 254. One who in his pleading has stated a legal conclusion cannot object to a denial thereof in the same terms: Baldwin v. Burt (1895), 43 Neb. 245, 61 N. W. 601.] [Abbott v. Gaches (1899), 20 Wash. 517, 56 Pac. 28.] all the facts necessary to show that the agreement was illegal as being in restraint of trade; but the illegality was not expressly averred, nor relied upon as a defence by means of any clause drawing such a conclusion from the facts which were stated. The defence, however, was held to be sufficient, both in form and substance: the facts constituting it were all pleaded; and that was enough, without adding the legal inferences from them.1 § 531. *640. Denials of Knowledge or Information. Formula Prescribed by Statute should be followed. All the denials, either general or specific, to which the rules stated in the foregoing subdivisions apply, may be either positive, or denials of knowledge or information in respect to the matters alleged by the plaintiff. When the latter mode is adopted, the formula prescribed by the statute should be exactly followed, not because there is any value in the form simply as such, but because in no other manner can the defendant satisfy the demands of the code, and raise a substantial issue, an issue which is not a subterfuge and pretence. When the denial is positive, the defendant is required to negative directly each and every allegation of the complaint or petition, or the particular ones controverted by him if less than all. If this cannot be done by reason of the defendant's ignorance, and he is therefore permitted to choose the other alternative, he must deny that he has any knowledge or information concerning the matters alleged sufficient to enable him to form a belief respecting them.2 Any other form must of necessity be evasive. And so the cases all hold; but a single illustration will suffice. The complaint in an action to recover the price of gas furnished to a city being verified, the answer was as follows: "And this defendant says that the defendant has no knowledge or information in relation to the allegations of the second count of the said complaint, and therefore denies the same." On the trial, the averments of the second count were treated by the court as not denied, and as therefore admitted to be true; and this ruling was sustained on appeal. The answer was held to be a nullity: the only denials permitted, it was said, are those positive in form, and those which deny any knowledge or information sufficient to form a belief; any others raise no issue.3 The same conclusion was reached in 1 Prost v. More, 40 Cal. 347. 8 San Francisco Gas Co. v. San Fran 2 [Colby v. Spokane (1895) 12 Wash. cisco, 9 Cal. 453. 690, 42 Pac. 112.] |