Fay v. Cobb

51 Cal. 313

Opinion

By the Court:

The court below struck out the general denial of Patterson as being “ sham,” and directed judgment to be entered for the plaintiff.

While it is true that a general denial, under the Code, if falsely interposed, or the general issue at common law, if falsely pleaded, may alike be characterized as “sham,” neither of these could be disposed of by the Court in a summary way, nor could an inquiry, in advance of the trial, be entertained as to the good faith of defendant in pleading such defenses.

The defendant has the right to put the plaintiff to the proof of his demand, and to require that he establish it by evidence admissible for that purpose. An ex parte affidavit is not such evidence. (Wayland v. Tysen, 45 N. Y. R. 282.)

The order of the court below, in so far as it struck out the general denial of Patterson, is erroneous, and the judgment is reversed and cause remanded. Remittitur forthwith.