Summary
In Atkinson v. Dean, 198 Ala. 262, 73 So. 479, 481, cited by appellant, the court, in reviewing Alabama Gt. S. R. R. Co. v. Johnson, 14 Ala. App. 558, 71 So. 620, where a passenger in alighting from a passenger coach tripped and fell over a valise projecting into the aisle, observed there was no evidence to show how long the valise had obstructed the aisle, and it did not appear any, servant of defendant was in the car at the time of the accident.
Summary of this case from Ensley Holding Co. v. KelleyOpinion
April 6, 1926.
PLEADING: Demurrer — General and Nonspecific Demurrer. A 1 demurrer to an answer in a law action, on the ground that the facts pleaded "do not entitle the defendant to the relief demanded," is fatally defective in definiteness, and should be overruled. (See Book of Anno., Vol. 1, Sec. 11142.)
PLEADING: Demurrer — Conclusions of Law or Fact. Conclusions of 2 law or fact are not demurrable.
PLEADING: Demurrer — General Denial. A general denial is not 3 demurrable. (See Book of Anno., Vol. 1, Sec. 11141, Anno. 22 et seq.)
PLEADING: General Denial — What Constitutes. A denial of 4 knowledge or information sufficient to form a belief as to a signature constitutes a general denial of the genuineness of such signature.
APPEAL AND ERROR: Harmless Error — Refusal to Strike Pleading.
et seq.) Headnote 1: Headnote 2: Headnote 3: Headnote 4: Headnote 5:
Appeal from Audubon District Court. — W.C. RATCLIFF, Judge.
ACTION to establish a claim against an estate. Plaintiff's demurrer to the answer of defendant was overruled, and plaintiff appeals. — Affirmed.
L. Dee Mallonee and A.V. Proudfoot, for appellant.
Hughes, Taylor O'Brien and J.A. Graham, for appellee.
Samuel Atkinson, a resident of Audubon County, Iowa, died testate on February 2, 1924. On opening his estate, the claimant herein, treasurer of Simpson College, filed a claim consisting of a writing purporting to have been executed by the deceased on the 18th day of June, 1923, the material part of which is as follows:
"In consideration of my interest in Christian education I hereby pledge and will pay to the treasurer of Simpson College, Indianola, Iowa, the sum of ___________ three fourths of my estate __________ dollars ($ 3/4 of my estate) upon the following terms and conditions: (1) This pledge shall be due and payable at the time of my decease and shall be paid out of the proceeds of my estate."
This writing is witnessed by A.H. Roberts and D.E. McClain.
To this claim the executrix of the estate filed an answer in three divisions. In the first division it is recited that:
"As to whether said Samuel Atkinson made and signed the paper upon which said claim of Rae L. Dean, treasurer of Simpson College, is based, this defendant has neither knowledge nor information sufficient to form a belief."
In this same division the executor says that said paper and instrument is testamentary in form, and was so intended by the deceased; that the will probated in this estate fully and wholly revokes said paper and instrument upon which appellant's claim is based; and that for that reason the instrument claimed on is void and of no effect. In the second division it is alleged, in substance, that said instrument was executed to a corporation engaged in educational and other kindred work at Indianola, Iowa, and that the deceased, having heirs, was without authority to devise or will a greater amount than 25 per cent of his estate to said institution, the said instrument being, in effect, a testamentary instrument. In the third division it is pleaded that the instrument sued on was indefinite and incomplete in substance and form, and is and was without consideration, was merely a testamentary paper, and was revoked by the will subsequently made.
Later, an amendment was filed to this answer by adding to it a fourth division, in which it is pleaded that the signature of Samuel Atkinson to said written instrument was secured by false and fraudulent representations, which are enumerated therein. At this point in the proceedings, a motion to strike certain parts of the original answer was filed by appellant, and on the same day separate demurrers were filed to the original answer and to the amendment to the answer. Following this, a second amendment to the answer was filed, amending Divisions 3 and 4 by elaborating more fully and setting out more in detail the alleged false and fraudulent representations. Apparently by agreement of the parties, the motion and demurrers were treated as standing to the petition with both amendments thereto, and we shall so treat them. On submission to the court, the motion and demurrers were overruled. The appellant stood on the rulings, refused to plead further, and judgment was entered accordingly.
These matters being taken in their inverse order, the demurrer to the first amendment to the answer raises the question that appellee's pleadings thus far filed do not allege (1) that the representations made were false; (2) that they were known to be false by the maker thereof; (3) that they were made with intent to defraud and deceive. After the filing of this demurrer, and before the ruling thereon, all these matters were set out in detail in the second amendment to the answer.
A further part of this demurrer urges: (1) That it did not plead that the deceased was damaged by any alleged representation; (2) that facts are not pleaded which sustain the allegation of fraud; (3) that what is pleaded is merely a matter of opinion and conclusion of law. None of these grounds are available as a basis for demurrer.
We will next consider the first demurrer, the grounds of which are that: (1) The defendant has not denied under oath the genuineness of the signature to the written instrument. (2) Defendant has not pleaded such facts as would constitute a defense to plaintiff's claim, but pleads matters of opinion and conclusions of law, which matters of opinion and conclusions of law are not admitted by the filing of the demurrer. (3) Plaintiff specifically demurs to Divisions 1, 2, and 3 of the answer, and to each of them, as pleading no facts constituting a defense, or that would justify the relief asked, and alleges that in each and all of said divisions the pleader has stated conclusions of law and matters of opinion, and not facts constituting a defense. (4) Defendant's answer on its face does not state facts constituting a defense, nor such facts as entitle defendant to the relief asked.
With reference to the last three grounds of the demurrer to the amendment, and all of the first demurrer above referred to, appellee says that the same are general demurrers, and do not comply with the requirements of the statute governing demurrers. Section 11141, Code of 1924, provides the grounds for demurrer under Iowa practice. Of these grounds we are interested in but one, the fifth, which reads:
"That the facts stated in the pleading attacked do not entitle the adverse party to the relief demanded."
A reference to the grounds for demurrer shows that the substance of each one of the grounds in the demurrers filed is, in effect, almost identical with the wording of the statute. If this were all the proposition involved, there would be little in appellant's contention. However, the succeeding section of the statute reads:
"It shall not be sufficient to state the grounds of demurrer in the foregoing terms."
It is, therefore, quite apparent that, in drawing these demurrers, the second provision of the statute was wholly ignored. The real purpose of the second provision is to require the party to specifically point out the defects 1. PLEADING: and weaknesses in the pleading about which he demurrer: complains. Failure to do this has been general and repeatedly held by this court to be sufficient nonspecific reason for overruling a demurrer. Overland S.C. demurrer. Co. v. Clemens, 189 Iowa 1293; Slafter v. Concordia F. Ins. Co., 142 Iowa 116; Robinson v. Grant Son, 119 Iowa 573; Stokes v. Sprague, 110 Iowa 89. A pleading which contains the statement of a conclusion, either of law or fact, is not a ground for demurrer. Provident Bank Stock Co. v. Schafer, 110 Iowa 440; Thompson v. Cook, 21 2. PLEADING: Iowa 472. None of the grounds of the first demurrer: demurrer or the last three grounds of the second conclusions demurrer comply with this requirement of the of law or statute. It is conclusive, therefore, under fact. these rules, that the district court was warranted in overruling both of these demurrers.
Turning to the demurrers themselves, we find that the first ground of the first demurrer is bottomed on the 3. PLEADING: thought that the signature of Atkinson is not demurrer: denied under oath. Under our procedure, an general administrator or executor is not required to denial. deny the signature under oath, in order to raise an issue as to the validity of the signature. Section 11961, Code of 1924; Smith v. King, 88 Iowa 105; In re Estate of Chismore, 166 Iowa 217.
In the first division of the answer, the executrix alleges, among other things, that she has neither knowledge nor information sufficient to form a belief as to whether or not Samuel Atkinson made and signed the papers sued 4. PLEADING: on. This amounts to a general denial, under Iowa general statutes. Section 11114, Code of 1924; Sample v. denial: what Griffith, 5 Iowa 376; McPhail Co. v. Hyatt, 29 constitutes. Iowa 137. That a general denial is never the subject of a demurrer, see Holbert v. St. L., K.C. N.R. Co., 38 Iowa 315; Johnson v. Tantlinger, 31 Iowa 500; Bonney v. Bonney, 29 Iowa 448.
The fourth division of the answer, aided by amendments, sets out a detailed statement of facts constituting the alleged false and fraudulent representation. We cannot burden the record by setting it out in haec verba. The pleading does set out the fraudulent statements by which it is claimed the signature was secured, and says that the statements were false, and known to be false when made; that they were made with intent to deceive; and that Atkinson believed the same and relied on them and was deceived and injured thereby. This was a sufficient statement of a cause of action, as against the demurrer. We hold, therefore, that the court was warranted in its action in overruling these demurrers.
It is insisted, however, by appellant that the court also erred in overruling the motion to strike. If we assume, without deciding, that this complaint is legitimate, of what avail is it to the appellant? By demurrer to the fourth 5. APPEAL AND division of the answer, he admits a set of facts ERROR: harm- which constitute a complete defense, and, since less error: he stood on that demurrer, we are confronted refusal to with exactly the same condition: that is to say, strike it is here admitted that the instrument was pleading. procured through false and fraudulent representations. This being so, there is no reason why the judgment entered in the lower court should not stand, against the appellant. Wallace v. Council Bluffs Ins. Co., 66 Iowa 139. Hence the ruling on the motion becomes immaterial. — Affirmed.
EVANS, FAVILLE, VERMILION, and MORLING, JJ., concur.
De GRAFF, C.J., not participating.