McKee Bros., Ltd. v. Mesa Equipment, Inc.

Idaho Supreme Court

McKee Bros., Ltd. v. Mesa Equipment, Inc.

628 P.2d 1036, 102 Idaho 202, 1981 Ida. LEXIS 323

Idaho Supreme Court·Decided May 8, 1981·No. 13541·Published·Cited by 12 cases

Opinions

BAKES, Chief Justice.

The plaintiff respondent, McKee Bros., Ltd., brought suit against defendant appellant, Mesa Equipment, Inc., to recover $5,196, the purchase price of a stack feeder. Mesa Equipment answered by way of a general denial. However, in answers to interrogatories, Mesa Equipment admitted that it had ordered the stack feeder for the price of $5,196; that it had' received the stack feeder; and that it had not paid any portion of the sum due. McKee Bros, then filed a motion for summary judgment.

In response to plaintiff’s motion for summary judgment, the defendant filed an affidavit alleging fraud on the part of the plaintiff. The court below concluded that the defendant might be able to establish the necessary elements of fraud and therefore ordered that “if Defendant files an amended answer properly setting up such defense within ten days, and leave is hereby granted therefor, then the motion for summary judgment must accordingly be denied.” The order was entered September 5, 1979. The defendant failed to amend its answer, and the court entered an order granting the motion for summary judgment on October 9, 1979. The defendant now appeals that order, claiming that it had established the right to proceed with its defense.

I.R.C.P. 8(c) requires that the affirmative defense of fraud be set forth in the defendant’s answer. The court was within its authority in conditioning the denial of summary judgment on the amendment of defendant’s answer. See Lowe v. Long, 5 Idaho 122, 47 P. 93 (1896). Since the defendant admitted all the elements necessary to establish plaintiff’s right to relief and also failed to amend its answer, the trial court properly granted summary judgment in favor of the plaintiff. I.R.C.P. 56(c); Lowe v. Long, supra.

[203]*203The record does not contain any motion to set aside the judgment under I.R.C.P. 60(b) for inadvertence or excusable neglect. We must, therefore, assume that the failure to amend the answer was not due to inadvertence or excusable neglect.

The judgment is affirmed. Costs, including attorney fees pursuant to I.C. § 12-120(2), to respondent.

McFADDEN, BISTLINE, DONALDSON and SHEPARD, JJ., concur.

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BAKES, Chief Justice.

The plaintiff respondent, McKee Bros., Ltd., brought suit against defendant appellant, Mesa Equipment, Inc., to recover $5,196, the purchase price of a stack feeder. Mesa Equipment answered by way of a general denial. However, in answers to interrogatories, Mesa Equipment admitted that it had ordered the stack feeder for the price of $5,196; that it had' received the stack feeder; and that it had not paid any portion of the sum due. McKee Bros, then filed a motion for summary judgment.

In response to plaintiff’s motion for summary judgment, the defendant filed an affidavit alleging fraud on the part of the plaintiff. The court below concluded that the defendant might be able to establish the necessary elements of fraud and therefore ordered that “if Defendant files an amended answer properly setting up such defense within ten days, and leave is hereby granted therefor, then the motion for summary judgment must accordingly be denied.” The order was entered September 5, 1979. The defendant failed to amend its answer, and the court entered an order granting the motion for summary judgment on October 9, 1979. The defendant now appeals that order, claiming that it had established the right to proceed with its defense.

I.R.C.P. 8(c) requires that the affirmative defense of fraud be set forth in the defendant’s answer. The court was within its authority in conditioning the denial of summary judgment on the amendment of defendant’s answer. See Lowe v. Long, 5 Idaho 122, 47 P. 93 (1896). Since the defendant admitted all the elements necessary to establish plaintiff’s right to relief and also failed to amend its answer, the trial court properly granted summary judgment in favor of the plaintiff. I.R.C.P. 56(c); Lowe v. Long, supra.

[203]*203The record does not contain any motion to set aside the judgment under I.R.C.P. 60(b) for inadvertence or excusable neglect. We must, therefore, assume that the failure to amend the answer was not due to inadvertence or excusable neglect.

The judgment is affirmed. Costs, including attorney fees pursuant to I.C. § 12-120(2), to respondent.

McFADDEN, BISTLINE, DONALDSON and SHEPARD, JJ., concur.

McKee Bros., Ltd. v. Mesa Equipment, Inc., 628 P.2d 1036, 102 Idaho 202, 1981 Ida. LEXIS 323 (Idaho 1981).

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628 P.2d 1036 (McKee Bros., Ltd. v. Mesa Equipment, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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McKee Bros., Ltd. v. Mesa Equipment, Inc.

628 P.2d 1036 (Idaho Supreme Court, 1981)

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