This is an appeal from a judgment granted on the pleadings after the sustaining of special and general demurrers.
The Consolidated Steelcraft Co., the respondent herein, commenced an action against Horace J. Knowlton, the appellant herein, to collect a balance due on a promissory note. Appellant, who is an attorney at law, appeared for himself and answered denying that he owed any money on the note because the signature was obtained by misrepresentation and fraud. He also filed a counterclaim for monies allegedly due him based on the misrepresentations and fraud in the transaction for which the note was given. Respondent filed a motion to strike the answer and counterclaim, which motion was denied on December 23, 1946, whereupon respondent filed a special and general demurrer to the answer and counterclaim and a motion to strike the prayer on March 19, 1947, which were sustained by the court and leave given appellant to amend. Appellant then served on the attorneys for respondent a first amended answer and counterclaim but did not file this pleading with the court. Respondent moved to strike portions of appellant's first amended answer and counterclaim as being unresponsive to the demurrer and repetitious and moved the court to grant a judgment on its pleadings. The hearing on this motion was set for May 16, 1947, and upon appellant's failure to appear, the court granted the motion to strike and after admitting evidence granted a judgment on the pleadings which was entered on May 24, 1947. On May 29, 1947, appellant herein filed a second amended answer without leave of court and also filed a motion requesting that the judgment be set aside on the grounds of excusable neglect and that the judgment *Page 370 was improperly granted because there was a defense pleaded in the answer. He filed affidavits in support of such motion showing that he was unable to be present at the May 16th hearing because he was unavoidably delayed from arriving in time due to the breakdown of his car while he was driving from out of town toward Salt Lake City, and the impossibility of procuring other transportation in time. This motion was heard on June 2nd at which time it was discovered that the first amended answer was not in the court's file. The court denied the motion and on June 10th another motion was filed to set aside the judgment on the pleadings. This motion was heard on June 23rd, at which time other counsel appeared for appellant herein. The motion to set aside the judgment was granted and appellant's first amended answer and complaint which had inadvertently not been filed was allowed to be filed. Appellant's counsel then asked leave to amend and file a second amended answer and counterclaim. The court denied this request but allowed respondent to renew its motions to strike the material allegations of the first amended answer and counterclaim and for judgment on the pleadings, which motions were granted.
Did the court err in granting the motions to strike the first amended answer and counterclaim?
Sec. 104-13-1, U.C.A. 1943, provides that:
"In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed with a view to substantial justice between the parties."
Under this section the court on a motion to strike must liberally construe the pleadings "with a view to substantial justice between the parties" and if from the pleadings it appears that the facts alleged constitute a cause of action or a good defense, the motion to strike should not be 1 granted even though a demurrer might lie for uncertainty or ambiguity. See Gregg v. Groesbeck, 11 Utah 310,40 P. 202, 32 L.R.A. 266, wherein this court in construing 2 C.L. 1888, Sec. 3238, now Section 104-13-1, U. *Page 371 C.A. 1943, said, on pages 316 and 317 of 11 Utah, on page 202 of 40 P.:
"The answer is very ambiguous and uncertain, and is clearly demurrable. There is some doubt as to the meaning of various allegations. But a demurrer is very different from a motion to strike a pleading from the files, although the practice is too often indulged in to substitute the latter for the former. An answer which may be subject to a demurrer may be invulnerable when assailed by a motion to strike out. Upon a motion of this character the court is to be guided by the statute, which declares that, `in the construction of a pleading for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.' 2 Comp. Law, § 3238. Keeping in view this just statutory provision, let us ascertain what the answer means. In doing this it should be construed as a whole. Isolated sentences may convey an erroneous idea, and superfluous averments form no part of the pleadings, and, upon a motion like that submitted in this case, may be disregarded, though they seem to be at variance with the material and substantial allegations therein. Themeaning and intention of the pleader are the paramountconsiderations in determining the sufficiency of a pleading. Evenif the meaning be obscure, and the language expressing it darkand uncertain, the court ought not to strike an answer from thefiles, if, by fair interpretation, the meaning can be discovered,and the facts alleged present a defense * * *." (Italics ours.)
In the instant case a fair interpretation of the meaning of appellant's answer would be that there was no money due and owing on the promissory note on which respondent's action is based because of misrepresentation and fraud in its procurement. This if properly pleaded would be a good 2 defense to respondent's action. Evidently, the court on the first motion to strike was of the opinion that the answer and counterclaim stated facts which in the former would be a good defense to the action, and in the latter a good cause of action against respondent, because it refused to strike the pleadings but suggested that it would entertain demurrers. Months later respondent demurred and these demurrers were sustained and appellant given leave to amend. It was to appellant's first amended answer and counterclaim that the court granted the motion to strike. In so doing the court erred. *Page 372
Respondent contends that the court under the peculiar facts and circumstances in this case was justified in striking all of defendant's pleadings and in refusing to allow him to further plead and in entering judgment against him on the pleadings. When the court granted the first motion to strike the amended answer and counterclaim, no such answer and counterclaim had been filed, and there was nothing for it to act upon. When this was called to the court's attention, all the parties were represented in court and defendant had obtained counsel to represent him. The court thereupon set aside its order striking the amended answer and counterclaim and the judgment in plaintiff's favor and allowed defendant to file his amended answer and counterclaim, and then immediately granted plaintiff's motion to strike all the material portions of the answer and counterclaim from the files, and then refused to allow a second amended answer and counterclaim which was already prepared to be filed, or to allow the attorney representing defendant to go over the matter and prepare another amended answer and counterclaim which would clear up the ambiguity and meet the objections thereto on demurrer.
A motion for judgment on the pleadings should ordinarily only be granted when under the admitted facts the movant would be entitled to a judgment on the merits, regardless of the truth of the facts alleged as a defense to the cause of action, but where a good defense might be pleaded the court 3 should not grant a judgment on the pleadings where leave is asked to amend but should allow the amendments to be made. See Hancock v. Luke, 46 Utah 26, 27, 148 P. 452; andHarman v. Yeager, 100 Utah 30, 110 P.2d 352. Respondent concedes that courts should be reluctant to grant judgments on the pleadings where it appears that a good defense could be pleaded but argues that under the circumstances of this case the court did not abuse its discretion in granting the motion because the first amended answer and counterclaim was sham and frivolous in that it was so like the original answer and counterclaim *Page 373 to which demurrers had been sustained, and as such was an attempt to avoid the ruling of the court and was a device to obstruct justice.
There is no contention that the answer and counterclaim did not state a defense, or a cause of action against plaintiff. The claim is that it was deficient in that it was ambiguous and uncertain; in other words, the objection was to its form rather than the substance thereof. A new attorney 4 was appearing for defendant who offered, and there could be little doubt of his ability, to prepare and file an answer and counterclaim which would conform to the court's requirements. Under these circumstances it was clearly error to strike the entire material portions of the pleadings and refuse to allow further answer and counterclaim to be prepared and filed unless the circumstances were such that defendant had acted in bad faith and been so insincere with the court that the court was justified in striking all of his pleadings from the files and granting judgment against him by default.
The record here does not justify such a holding. It is clear that at the time the ruling was finally made defendant was perfectly sincere and acting in good faith. He was ready, willing and able to comply with the court's rulings. It is true that some delay had been caused by defendant's failure to file an amended answer and counterclaim in compliance with the rulings of the court on the demurrer thereto within the time granted by the court. However, the plaintiff did not show any particular haste to file its demurrer after its original motion to strike had been denied, as almost three months passed between the time the court ruled on its motion to strike and the time when the demurrers were filed. In view of these facts and circumstances, we think the court erred in striking from the files the material portions of defendant's amended answer and counterclaim and refusing to allow him to further amend his pleadings, and in granting judgment on the pleadings. *Page 374
Reversed with instructions to set aside the judgment and to reinstate the action and grant appellant leave to amend his first amended answer and counterclaim should he so desire. Costs to appellant.
McDONOUGH, C.J., and LATIMER, J., concur.