To the answer made by the respondent and filed July 11, 1934, the relator, by his counsel interposed a motion to strike and asked for the issuing of a peremptory writ.
On May the 15th, 1934, this Court by order allowed the respondent ten days from the entry of the order in which to interpose an answer to the writ denying the material allegations of employment of the relator by the "Assessment Board" for the period alleged, and that he has never been discharged by a majority vote of the Board from such employment. *Page 743
The answer does not meet the requirements of that order but encumbers the record with many averments which may be evidentiary of respondent's contention that the relator was not employed by the Assessment Board and that by consent and approval of a majority of the Board he was discharged from the service of the State in the position of Assessment Engineer. The answer contains, however, in its entirety a denial of employment by the Assessment Board of the Relator for a period of two years and a joinder of issue upon the allegation that relator was not discharged from his employment by a majority vote of the members of the Board.
We conclude, therefore, to allow the answer to stand in so far as it amounts to a categorical denial of employment and an affirmative defense that the relator was relieved of his employment by and with the approval of a majority vote of the members of the Board; that the case shall proceed to trial upon those issues. All evidentiary matter and other recitations and averments are stricken. The motion to strike is denied in so far as it sought to eliminate the two defenses as above stated and granted as to all other unnecessary and superfluous averments of evidentiary and other matters.
The motion for a peremptory writ is denied.
ELLIS, TERRELL and BUFORD, J. J., and HUTCHISON, Circuit Judge, concur.
BROWN, J., concurs in part and dissents in part.
DAVIS, C. J., disqualified.