Howell v. . Ferguson

87 N.C. 113

Opinion

Ashe, J.,

after stating the above. Sham and irrelevant answers .and defences may be stricken out -on motion, and upon such terms as the court may in its discretion impose. O. O. P., '§ 104. A sham answer is one that is false in fact.; an irrelevant answer is one which has no substantial relation to the controversy between the parties to the action; •and an answer is frivolous when, assuming its contents to ■be true, it presents no defence to the action. Bliss on Code Pleading, 507, and note.

It would seem from .the definitions, that the distinction between -an irrelevant and frivolous answer is virtually without a difference, and that they maj be considered as •correlative terms.

Assuming then all the allegations of the defendants’ answer to be true, .there is not one of them that constitutes a •substantial defence to the action, and the answer is therefore frivolous, and should have been stricken out and judgment given as fox the want of -an answer.

But we might very well have put our decision on this appeal upon another ground, which is, that there is no error assigned by the defendants and as none appears on the record, the judgment of the court below should be affirmed. Swepson v. Summey, 74 N. C., 551.

No error. Affirmed.