Alvah Munn vs. John H. P. Taulman

Kansas Supreme Court1862-08

1 Kan. 254

Summary · law.co

Holding. The trial court erred in sustaining the demurrer because the first ground of defense in the answer—a general denial—adequately apprised the plaintiff of the intended defense despite imperfect wording. The judgment is reversed and remanded with instructions to overrule the demurrer and allow further proceedings.

The defendant filed an answer containing three grounds of defense, and the plaintiff demurred, arguing the answer failed to state any valid defense. The trial court sustained the demurrer. On appeal, the court examined each ground of defense and found that while the second and third grounds were defective, the first ground—a general denial of the plaintiff's allegations—was sufficient, notwithstanding its somewhat awkward phrasing.

The appellate court held that the defendant's use of the language "he says that he denies" rather than simply "he denies" did not render the general denial invalid. The court emphasized that the code requires liberal construction to promote justice and assist parties in obtaining their rights. A general denial adequately serves its purpose by informing the opposing party what defense will be raised, and minor variations in wording should not defeat this objective. The court also noted that any issue arising from inconsistent grounds of defense cannot be addressed through demurrer but instead requires the defendant to make an election.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a general denial with non-standard phrasing constitutes a sufficient defense
Proper standard for interpreting pleadings under the code
Whether demurrer is the appropriate vehicle to challenge defective general denials

Procedural posture

The case came before the appellate court on error from the district court for Leavenworth county, which had sustained the defendant's demurrer to the plaintiff's answer.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

By the Court,

Kingman, J.

This cause comes up on error from the district court for Leavenworth county.

The only question is, whether the court erred in sustaining the demurrer to the answer.

The answer sets forth three, grounds of defense, and the demurrer is general, that the answer does not set forth any defense to the action.

If any of the grounds of defense are good, then the court erred in sustaining the demurrer. Plaintiff in error very candidly admits that the third clause of the answer constitutes no defense to the action. We think he is right, and also that the second clause is equally defective.

This leaves the first ground of defense set forth in the answer for consideration. It is as follows :

“ And now comes the said Alvah Munn, the above named defendant, by Locompte, Mathias & Burns, his attorneys, and for answer to the petition of the said plaintiff, filed in the above cause, says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says that he denies each and every allegation in plaintiff’s petition alleged against him, and of this he puts himself upon the country.”

The only objection urged to this is the use of the langauge, “he says that he denies,” instead of “ he denies.”

It is insisted by defendant in error that the court must take into consideration that the code was framed with reference to the verification of pleadings, and that the phrase, “ says he denies,” would not have subjected the maker of the affidavit to answer to the penalties of perjury, were statements of the answer known, by affiant, to be false.

We admit the principle of construction, but deny the application.

To say that he denies, is to deny; and had it been written, “because he denies,” he would have denied by saying so on paper, and he has done no more than declare that he does what it would otherwise be obvious that he had done.

In Ohio it has been decided that an objection to a defective general denial must be made by motion, and cannot, in general, be taken by demurrer. (Sevan’s Pl. and Pr., 245, .253.)

We do not think it necessary to affirm that in this case. The second section of the code has laid down the principle# of. its interpretation.

After having given the code a name, the legislature hastened to declare that its provisions and all proceedings under it, shall be liberally construed with a view to promote its object, and assist the parties in obtaining justice.

The object of an answer is to apprise the plaintiff what defense is intended to be set up in bar of his claim. This is clearly and manifestly done in this case, and this is all the law requires.

It is urged by defendant in error that the several grounds of defense are inconsistent. If so, it is not a defect that can be taken advantage of by demurrer. The usual and proper

course is to compel the party to elect on which of the inconsistent grounds he will rely for a defense.

■ The judgment is reversed, and the case is remanded to the district court of Leavenworth county, with directions to overrule the demurrer, and for further proceedings.

Judgment is rendered against defendant in error for costs in this court.