JOSEPH McMILLAN, Respondent, v. C. V. GREENAMYER et al., as Trustees, etc., Defendants; C. V. GREENAMYER, Defendant and Appellant

[Civ. No. 3234. Second Appellate District, Division Two. May 26, 1921.] JOSEPH McMILLAN, Respondent, v. C. V. GREENAMYER et al., as Trustees, etc., Defendants; C. V. GREENAMYER, Defendant and Appellant. Judgment—Action Against Trustees—Confession of Judgment —Meritorious Answer by One Defendant—Effect of.—Where, in an action against the trustees of an unincorporated association doing business under a declaration of trust, two of the trustees confessed judgment and the third trustee answered and alleged that there was no consideration for the note sued upon, or that it had failed to a considerable extent through the manipulations of the plaintiff and the other trustees, who were conniving with the plaintiff to wreck the association to the injury of the answering trustee, it was error to render judgment upon the confession without disposing of such answer or the hearing of any evidence, since the pleading stated a defense to the action. APPEAL from a judgment of the Superior Court of Los Angeles County. S. M. Marsh, Judge Presiding. Reversed. The facts are stated in the opinion of the court. Rupert B. Turnbull for Appellant. W. R. Millar for Respondent. [MAJORITY — WORKS, J.] WORKS, J. This is an appeal from a judgment against three defendants upon a confession of judgment filed by two of them. Before the confession was filed the third defendant had interposed an answer to the complaint and, after it was filed and by leave of court, he presented an amended answer. The trial court, without in any manner disposing of this pleading and without the hearing of any evidence, and without any findings of fact, rendered judgment upon the confession. Respondent moved for a dismissal of this appeal on the ground that an appeal from a judgment by confession does not lie. We denied the motion (McMillan v. Greenamyer, 50 Cal. App. 601, [195 Pac. 734]), and determined that the answering defendant had the right to maintain a defense in the action. A more detailed statement of the facts will be found in the opinion then delivered. Appellant presented a brief in opposition to the motion to dismiss the appeal, but has filed none for onr consideration in passing upon the appeal on its merits. On the motion to dismiss we not only determined that the answering defendant had a right to defend, but we had this to say of his amended answer: “If the statements made therein were substantiated by proof, the court would have been justified in rendering a different judgment than that founded on the confession.” This was, in effect, a decision that the amended answer stated a defense, and the merit of the appeal was thus determined. We have, however, again examined the pleading and there is no doubt that it puts in issue material allegations of the. complaint and that it properly pleads defensive new matter as well. The judgment is reversed and the cause is remanded. Finlayson, P. J., and Craig, J., concurred.