Kirstein v. Madden

California Supreme Court

Kirstein v. Madden

38 Cal. 158, 1869 Cal. LEXIS 131

CourtCalifornia Supreme Court

DecidedJuly 1, 1869

StatusPublished

Cited by6 cases

This text of 38 Cal. 158 (Kirstein v. Madden) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kirstein v. Madden, 38 Cal. 158, 1869 Cal. LEXIS 131 (Cal. 1869).

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Opinion

Sawyer, C. J.,,delivered the opinion of the Court:

The affidavit and papers on the motion for leave to amend the answer, we think, upon the whole, are sufficiently referred to and identified in the statement on appeal to make them a part of it, and entitle them to consideration. The denials of the first answer were insufficient to raise an issue, and their sufficiency was properly tested on the motion for judg[163]*163ment. The statement shows that, upon that motion, the defendant, Madden, offered to verify and file an amended answer, and asked leave to do so, upon an affidavit manifesting his good faith. We think he ought to have been permitted to amend his-answer. From oversights of counsel, committed under pressure of business, pleadings are often defective. In such cases, when an offer to amend is made, at such a stage in the proceedings that the other party will not lose an opportunity to fairly present his whole case, amendments should be allowed with great liberality. The denials in the proposed answer are “upon his information and belief,” instead of the statutory language “according to his information and belief,” and respondent insists that they are still insufficient. It may well be doubted whether the former mode of denial does not allow a little wider field for evasion; but, however this may be, it has been widely adopted by pleaders, and it is now settled that it is sufficient. (Vassault v. Austin, 32 Cal. 606; Roussin v. Stewart, 33 Cal. 211; Jones v. City of Petaluma, 36 Cal. 230.) The proposed answer, therefore, took issue on the material averments of the complaint, which had been defectively denied in the first answer, and we think the Court should have permitted the amendment.

We find nothing to authorize any affirmative relief in the cross-complaint.

Judgment reversed and cause remanded, with directions to permit defendant, Madden, to file his amended answer when duly verified.

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Sawyer, C. J.,,delivered the opinion of the Court:

The affidavit and papers on the motion for leave to amend the answer, we think, upon the whole, are sufficiently referred to and identified in the statement on appeal to make them a part of it, and entitle them to consideration. The denials of the first answer were insufficient to raise an issue, and their sufficiency was properly tested on the motion for judg[163]*163ment. The statement shows that, upon that motion, the defendant, Madden, offered to verify and file an amended answer, and asked leave to do so, upon an affidavit manifesting his good faith. We think he ought to have been permitted to amend his-answer. From oversights of counsel, committed under pressure of business, pleadings are often defective. In such cases, when an offer to amend is made, at such a stage in the proceedings that the other party will not lose an opportunity to fairly present his whole case, amendments should be allowed with great liberality. The denials in the proposed answer are “upon his information and belief,” instead of the statutory language “according to his information and belief,” and respondent insists that they are still insufficient. It may well be doubted whether the former mode of denial does not allow a little wider field for evasion; but, however this may be, it has been widely adopted by pleaders, and it is now settled that it is sufficient. (Vassault v. Austin, 32 Cal. 606; Roussin v. Stewart, 33 Cal. 211; Jones v. City of Petaluma, 36 Cal. 230.) The proposed answer, therefore, took issue on the material averments of the complaint, which had been defectively denied in the first answer, and we think the Court should have permitted the amendment.

We find nothing to authorize any affirmative relief in the cross-complaint.

Judgment reversed and cause remanded, with directions to permit defendant, Madden, to file his amended answer when duly verified.

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Bluebook (online)

38 Cal. 158, 1869 Cal. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirstein-v-madden-cal-1869.

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