In my opinion the importance of this case lies in matters of procedure. When the court reopened the case for filing the amended answer and counterclaim, probably it would have been better, so far as the parties were concerned, to treat the matter as if it had started at that time, and permitted the filing of the second amended answer. However, as an appellate court, we are not always in a position, with merely the written record before us, to appraise the good faith of the litigants in their treatment of the lower court. Ulterior motives do not always show up in black and white. For this reason, I wish to make no particular comment upon the matter of responsibility or discretion of anyone concerned.
I am going to start with the filing of the first amended answer and counterclaim — which filing was allowed out of time by agreement of the parties, and cleared the record up to that time. In paragraph 2 thereof we find these allegations:
(1) "Admits the allegations of paragraphs 2, 3 and 4 of the plaintiff's complaint and admits that $4,500.00 was paid as alleged in paragraph 5 * * *"
(2) "* * * and denies that there is anything due and owing on the said note * * *" (This follows immediately after certain allegations of fraud)
(3) "* * * and denies each and every other allegation in the said first cause of action contained, not hereinbefore admitted or hereinafter admitted or qualified."
Paragraphs 2, 3 and 4 of the complaint allege that defendant was doing business as the Knowlton Equipment *Page 375 Company; that he is a resident of Salt Lake County; and that he executed and delivered the note in question. Paragraph 5 of the complaint admits the payment of the $4,500 and then alleges that there is a balance due of $5,355. Paragraph 1 thereof alleges that plaintiff is a co-partnership doing business under the name and style of the Consolidated Steelcraft Co.
A court might reasonably conclude from allegations of an answer covering fraud that there was no merit to the fraud and therefore a specific denial of liability, founded upon those allegations of fraud — such as number (2) above appears to be — was without merit; but I doubt that such a conclusion should also be extended to a general denial of all allegations not admitted — number (3) above.
This general denial along with the special denial appears not only in paragraph 2 of the amended answer, but also in paragraph 2 of the original answer. I question seriously the propriety of striking a general denial as sham and irrelevant, unless the pleadings clearly show that it is a nullity — such for instance as a case in which a specific denial is required by the code. To strike the amended answer in this case may still leave the question of the general denial in the original answer with which to cope, as the lower court denied a motion to strike the original answer; and the demurrer that was sustained to the original answer was a special demurrer upon the grounds that the allegations of fraud were ambiguous, unintelligible and uncertain. The demurrer has "general" in its title but no allegations to support that part of the title so far as the answer is concerned. When the lower court's attention was called to paragraph 2 of the original answer, he still adhered to his ruling that he was striking paragraph 2 of the amended answer — not the original answer.
To strike pleadings is to hold them sham and irrelevant — so much redundant matter. If then, we assume that the striking of the amended answer was proper, there still remained *Page 376 in the case paragraph 2 of the original answer which contained a general denial which had not been the subject of attack. Thus a default judgment was not in order. Furthermore, the presence of the general denial defeats a claim that there was an admission of liability. Tooele Meat Storage Co. v. Eite Candy Co.,57 Utah 1, 168 P. 427. Thus judgment on the pleadings was not in order — unless, as indicated above, we can say that the issues had so developed that a general denial was a nullity — was a pleading under which defendant could produce no proof. It does not appear that any one had such a thought in this case.
Under these circumstances, it would be better to have the case reconsidered.