delivered the opinion of the Court. Khodes, C. J., and Temple, J., concurring:
The plaintiff obtained judgment on the pleadings in the Court below.
It is objected here that the practice prevailing in our Courts does not permit a judgment to be entered on the pleadings. If a complaint be itself sufficient, there is no question that the plaintiff may apply for judgment on the pleadings, if the defendant has filed an answer which expressly admits the material facts stated in the complaint; and so when the answer filed leaves all the material allegations of the complaint undenied; this practice is constantly pursued, when denials in verified answers are literal merely, or conjunctive, evasive, or the like. If this be the practice as to answers which insufficiently deny the plaintiff’s allegations, why should not answers, which merely set up new matter in defence, if found substantially insufficient, be subjected to the same practice? The gro.und upon which a motion, made by plaintiff for judgment on the pleadings, proceeds in any case, is that his complaint is sufficient to warrant it, and that the answer presents nothing, either by way or denial or of new matter, to bar or defeat the action.
*444The complaint sets forth tbe instrument upon which the action is brought, in the words and figures following:
[$2,000] Los Angeles, (Cal.), April 18, 1868.
Thirty days after date, I promise to pay Noah Felch the sum of two thousand ($2,000) dollars in gold coin of the United States of America, without interest, on condition that the said Noah and Maria Antonia G. de Dominguez de Felch, the wife of said Noah, duly execute, sign, seal and deliver to the subscriber and John G. Downey, a good and valid deed, of even date with these presents, of certain lands, being a part of the Pancho San Pedro (more particularly described in said deed, in which the subscribed and said John G. Downey are parties of the second part, and said Noah and wife are parties of the first part).
(Signed) P. Beaudry.
It is alleged in the complaint that Felch and wife made and delivered to Beaudry and Downey the deed of conveyance in this instrument mentioned, and fulfilled all the conditions therein set forth upon their part. The answer sets out with a denial that Felch is the lawful owner or holder of the instrument which is sued on, and, as is seen, runs to him upon its face.
As we said in the recent case of Frost v. Harford, a de-fence in this form, and which discloses no issuable fact to support it, is merely frivolous.
It is next alleged that the consideration of this express agreement on the part of Beaudry to pay Felch was a conveyance of the separate property of the wife of the latter to Beaudry and Downey, and that Felch is endeavoring to defraud her out of it by recovering it for himself in this action. But this, if true, does not concern the defendant Beaudry in anywise — he is not the trustee of the wife of Felch, nor charged with the duty of protecting her property from injuries committed, or about to be committed, by her husband.
It is next averred that the defendant, before the commencement of the action, had fully paid and discharged the note by payment thereof to the wife of Felch. This is a separate defence and disconnected with any averment that *445this money was her separate property, and, in tbat respect, is insufficient to bar tbe action, as would bave been a plea tbat tbe defendant bad paid tbe money to any other stranger who bad no authority to receive it. But even bad it been averred in this connection, and as a part of this separate defence, tbat tbe money belonged to her separate estate, it would bave availed nothing, because tbe defendant has no interest or concern in tbat question.
Tbe answer then avers tbat tbe “ wife ” of Felcb, before tbe commencement of this suit, commenced an action against him to obtain a divorce, and tbat she alleges in her complaint in tbat action tbat tbe money mentioned in tbe agreement set out in tbe complaint here is her separate property; and tbe answer also avers tbat Beaudry, tbe defendant here, is a defendant in tbat action in respect to tbe obligation here sued on, and that tbe divorce suit is yet pending; and pleads its pendency “in bar of recovery in this suit; ” and avers tbat tbe purpose of Felcb in bringing this action is to defraud bis wife, and alleges tbat Felcb is insolvent.
Tbe plea tbat tbe divorce suit is pending is insufficient to bar tbe action here. It is indispensable to such a plea tbat tbe same person should appear to be tbe plaintiff in both actions. In tbe suit for divorce tbe wife of Felcb is tbe plaintiff; in this action Felcb himself is tbe plaintiff. This is fatal to tbe plea.
We are of opinion tbat tbe answer discloses no defence whatever to tbe action, and tbe Court below did not err in granting tbe motion for judgment.
After judgment bad been rendered tbe defendant applied to tbe Court below for leave to amend bis answer. Tbe application was denied, and we cannot say, under tbe circumstances, tbat its.denial involved any abuse of tbe discretion of tbe Court.
The motion for judgment was made August 14th. Tbat motion must then, at all events, bave apprised tbe defendant of tbe defects alleged to exist in bis answer, if be was not aware of them before. He made no application then, *446nor at any time afterwards during the entire week which intervened between the hearing of the motion and the order that judgment be entered.
If he intended to abandon his answer and substitute another one in its stead, he should have made his application before judgment was ordered; at least if he wait till after that time we will not disturb the order of the Court below refusing him leave to amend.
Judgment and order affirmed.