Mundy v. Wight

26 Kan. 173

• Court: Supreme Court of Kansas
• Decided: July 15, 1881
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

Defendant in error, plaintiff below, recovered a judgment for $50, in the district court of Lyon county, against the plaintiff in error, for an alleged slander. The first question arises on the ruling of the court, upon a motion of -plaintiff to require the defendant to separately state and number her defenses, which motion was sustained. The answer reads as follows:

“Comes now said defendant, and for answer to the plaintiff’s petition, denies each and every allegation thereof.

“And for a further answer and second defense, this defendant avers,” etc.

And then it proceeds to allege a justification and matter in mitigation.

We think the court erred in sustaining this motion. The statute requires in respect to defenses, that “each must be separately stated and numbered.” The purpose of this provision is, to require each defense to be so clearly and separately presented that it can be challenged by motion or demurrer, just as though it was the only defense; that there should be no dispute between the pleaders as to whether any specific allegation belonged to one defense or another. It is not a purely technical and arbitrary rule, and must be enforced according to its spirit. It is not essential that the numbers 1, 2, 3, etc., be placed at the beginning of the various defenses ; it is enough if each defense is stated separately and distinctly from the others, and numerically prefaced. This answer, we think, fulfills the statutory requirements. The first defense is a general denial, separately stated and complete in itself, and the second defense is not only separately stated, but is numbered as such. It commences, Kea ami “And for a further answer and second defense.” This numbers it, divides it from all that has preceded, and makes the two defenses beyond all possibility of •confusion or doubt, separately stated and numbered. Any other construction disregards the requirements of § 140, which forbids any notice of an error or defect in the proceedings or pleadings which does not affect the substantial rights of the .adverse party.

After sustaining this motion, the defendant failing to make any change in her answer, the court, on motion, struck out the second defense, and on the trial refused to permit an amendment of the answer by adding that which had been struck out, or to admit any testimony in support of such defense. The second defense contained a justification; alleged the truth of the slanderous statement charged against the •defendant. If there was any defect in the manner of stating this justification —and we do not hold that there was — it was a defect to be cured by a motion to make the answer more specific and definite. The truth is a complete 1 truth, a'fun defense in all civil cases of libel or slander. (Castle v. Houston, 19 Kas. 417.) The justification was sufficiently pleaded as against any objection raised by the plaintiff.

The court erred in striking out this defense, and in refusing to permit plaintiff to prove the justification. For this error the judgment must be reversed, and the case remanded for a new trial.

All the Justices concurring.