October 3, 1916. The opinion of the Court was delivered by Action upon two negotiable instruments, payable to the plaintiff. The Circuit Court struck out the answers because they were esteemed "frivolous and sham," and gave judgment against the defendants. Of the three defendants Mrs. Kibler alone has appealed from that order.
The pleadings ought to be reported. There was no proof that the answer was sham, that is to say, that its pretended denials and its pretended new matter are untrue. The only *Page 519 issue to be decided, therefore, is this, Is the answer frivolous?
An answer is frivolous when it is clearly insufficient on its face, and does not controvert the material points of the complaint, and is presumably interposed for mere purposes of delay. Black's Law Dic., page 526.
In the instant case the material allegations of the complaint, so far as Mrs. Kibler is concerned, are: Paragraph 3, that R.Y. Kibler (the appellant's husband) in August, 1915, made his negotiable note to the plaintiff; paragraph 4, that Pearle Kibler thereafter and before maturity indorsed the said note and delivered it to the plaintiff for value; paragraph 5, that the note was not paid when due and was protested for nonpayment, and notice given.
The defendant was bound: (1) To deny these allegations; (2) or to say that she had no knowledge or information about them sufficient to form a belief; (3) or to state new matter which constitutes a defense thereto. Code, sec. 199. A denial is predicated on knowledge; a lack of belief is predicated on ignorance. The defendant did not deny; she did allege lack of knowledge, and, therefore, denied. That is not a sufficient denial. Pomeroy's Rem., sec. 640. The defendant will not be heard to say that she has no knowledge about an act laid at her own door; she may deny, if she will, as Peter did, but she may not palter. The complaint charged her with an act; it alleged that she indorsed and delivered before maturity a particularly described note to the plaintiff for value. That was the vital allegation which charged her with liability. She was bound to know the fact, whether she did or did not indorse and deliver before maturity; she cannot say, unless she be frivolous, that she has no knowledge of it. Pomeroy's Rem. 641.
It is true the defendant proceeded in paragraphs 4 and 5 of her answer to recite as pretensive new matter transactions *Page 520 betwixt herself and her husband, what they said to each other, and what they did, and what the husband told her the bank had told him; and from these allegations the pleader concludes, therefore, the wife got no consideration for her indorsement, and her contract with the bank was a collateral one and not binding on her. But the allegations in no wise implicate the bank in these transactions between the husband and wife. They are res interalios acta. If the wife was deceived into signing, the thing was not accomplished by the bank.
We have not considered by number the appellant's six exceptions; they were not so argued.
We have not put our judgment on the same ground upon which the Circuit Court rested its judgment. And we do not gainsay that under some circumstances an indorsement may be what the appellant calls collateral and not binding on her who makes it; but the allegations of the answer do not make such a case.
The issue here is one of pleading, and our judgment is based upon an answer which we deem insufficient and frivolous, and wholly irresponsive to the plain allegation of the complaint.
The judgment below is affirmed.