Nichols et al. v. Jones et al.

Nichols et al. v. Jones et al. 1. Pleadings in Civil Actions — Waiving Defects Therein. — 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 Civil Code, 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 tlie defenses, and not verified as to others. 3. Practice — Striking Out Unverified Portions of Answer.— 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. Same —When a Defense May be Treated as Insufficient.— 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 District Court of 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 xDleading contains twenty-six 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 latter’s special instance and request, is charged. The remaining counts are all based upon claims against the defendants in favor of third parties, duly assigned to plaintiffs. Some of these assigned 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. In 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 to 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 accordingly. Upon the remaining counts in the complaint, the court rendered judgment in accordance v ith the prayer of the complaint, to which findings and judgment the defendants Ira Nichols and H. N. Nichols, having duly excepted, bring the case here upon appeal. Messrs. G-ullett & Barnes and H. L. Karr, for appellants. [MAJORITY — Mr. Justice Hayt] Mr. Justice Hayt delivered the opinion of the court. 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 Oivil 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 defendants’ 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. á22. 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. Affirmed.