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A general denial of each allegation of the petition, or else of any knowledge or information thereof sufficient to form a belief;

3. A specific denial of each allegation of the petition controverted by the defendant, or any knowledge or information thereof sufficient to form a belief;

4. A statement of any new matter constituting a defense;

5. A statement of any new matter constituting a counter claim;

6. The defendant may set forth in his answer as many causes of defense, counter claim, whether legal or equitable, as he may

have.

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A denial of any information, etc., is not sufficient. It must be of any knowledge or information": Manny v. French, 23-250. So held, als, as to an allegation that the party had no knowledge sufficient to form a belief": Cutter v. McCormick, 48406, 415.

An answer simply denying any knowledge or information with respect to a note, upon which action is brought, cannot be held frivolous. An answer will not be so held, unless its insufficiency is so clear that it is apparent on a mere inspection: Farland v. Lester, 23-260.

nor can a party plead to the whole cause of action, and also aver matter which shows only a partial defense: Martin v. Sweareingen, 17–346.

A party pleading new matter in avoidance must first confess, either expressly or by implication, that which he proposes to avoid: Ibid; Anson v. Dwight, 18-241; Morgan v. Hawkeye Ins. Co., 37-359.

A counter claim is an answer: Town v. Bringolf, 47–133.

No notice need be served on plaintiff of the filing of an answer, asking Mc-affirmative relief: Treiber v. Schufer,

A denial that "There is due on said note the sum of, etc., as claimed by plaintiff," held, not sufficient as an answer and assailable by demurrer: Stucksleger v. Smith, 27-286.

Where plaintiff averred a written assignment to him of the cause of action, held, that a denial of the assignment was not sufficient, and that defendant should have denied the execution thereof: Cottle v. Cole, 20481.

Under our system of pleading there is no general issue, and a defendant should plead any defense he intends to interpose: Hagan v. Burch. 8-309; und under an answer by simple denial in an action for trespass, held, that the defendant could not excuse the trespass by proving the right of possession or title in a third person: Patterson v. Clark, 20-429.

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18-29.

The right of a defendant to avail himself of an equitable defense is not limited to any particular kind of action, but is general: Thompson v. Hurley, 19-331.

And such defense may be set up to defeat a legal title in an action at law: Shawhan v. Long, 26-483; Van Orman r. Spafford, 16-186; Rosierz v. Van Dam, 16-175; Kramer v. Conger, 16-434.

Afirmative defenses. equitable in their nature, are to be viewed in the same manner as to substance as though the same facts had been made the basis of a pet tion in chancery: Penny v. Cook, 19–538.

In an action on a judgment, the defendant my set up as an equitable defense any matter which he might have made the ground of an equitable suit directly assailing the judgment: Rogers v. Gwinn, 21–58.

An answer which purports to respond to the whole petition, if bad as Where the answer to a petition at to any one count, is bad as to all. law set up both legal and equitable A partial defense, or matter in miti- defenses, and the cause was tried by gation, must be pleaded and proved a referee without any separation of as such and not as a complete defense. the issues, held, that although one of Where the matter set up is neither by the parties served separate notice of way of denial nor of confession and appeal as from two cases, it would be avoidance, a demurrer will lie: Dar-treated on appeal as one case, and enport G. L. & C. Co. v. City of Darenport, 15-6; Peck v. Parchen, 52-46. And matter in defense, cannot be pleaded hypothetically,

tried as an eqn table action: Van Orman v. Merril, 27-476.

An equitable defense being interposed, it may be sustained by such

proof as is properly admissible on the first, afterwards the other issues, if trial of such an issue. The proper any remain: Byers v. Rodabaugh, practice is to try the equitable issues | 17-53; and see notes to § 2517.

R. 2893.

SEC. 2656. The guardian of a minor, or person of unsound of guardian. mind, or attorney for a person in prison, must deny in the answer all the material allegations of the petition prejudicial to such defendant.

Section applied: Bickel v. Ersk-ine, 43-213.

SEC. 2657. Each affirmative defense shall be stated in a dis- Divisions of. R. 2882. tinct division of the answer, and must be sufficient in itself, and must intelligibly refer to that part of the petition to which it is intended to apply.

Each count must in itself be suf- be pleaded in the same count of the ficient for the purposes for which it answer: Donahue v. Prosser, 10is pleaded, otherwise, it will be sub-276; nor should contradictory deject to demurrer: National Bank of tenses be pleaded in the same count: Mich. v. Green, 33-140. Morgan v. Hawkeye Ins Co., 37-359.

Several distinct defenses should not

SEC. 2658. In the defense part of an answer or reply, it shall o prayer. not be necessary to make any prayer of judgment.

R. 2883.

COUNTER CLAIM.

SEC. 2659. Each counter claim must be stated in a distinct How state. count or division, and must be:

1. When the action is founded on contract, a cause of action also arising on contract, or ascertained by the decision of a court;

or,

2. A cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contracts or transactions set forth in the petition or connected with the subject of the action; or,

3. Any new matter constituting a cause of action in favor of the defendant, or all of the defendants if more than one, against the plaintiff or all of the plaintiffs if more than one, and which the defendant or defendants might have brought when suit was commenced or which was then held, either matured or not, if matured when so plead.

The provisions of this section as to stating each counter claim in a distinct count, etc., refer to pleadings in an action at law. The following section refers to pleadings in equity in similar cases: Pond v. Waterloo

Agr'e'l Works, 50–596.

quired by him subsequently to the
dath of the intestate: Cook v. Lov-
ell, 11-81.

Where plaintiff is liable jointly
with others to defend on contract,
such liability may be set up as a
counter claim (§ 2550): Redman v.
Malein, 23-296.

Under Rev. § 2886, an account against a firm, of which plaintiff was a member, was allowed to be pleaded as a set off by the defendant in an action to foreclose a mortgage brought by plaintiff in his individual right: Allen e. Maddox, 40-124.

In a suit by an administrator to collect a claim due decedent in his life-time, the defendant may set up as a counter claim a demand existing in his own favor against decedent, but if the counter claim exceeds the original claim, the balance can only be enforced as other claims against the estate: Lucore v. Kramer, 22- In an action for divorce, a cross-pe987, but under Code of '51, held, that tition may be brought in the same in such case the defendant could not action for a divorce by the opposite set off a claim against the estate ac-party for causes arising after the com

R. 222884,286, 2889, 2851.

C. 51, § 1710.

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SEC. 2660. An equitable division must also be separated into Equitable mat- paragraphs, and numbered as required in regard to an equitable cause of action in the petition.

ter.
K. 2885.

Co-maker or

surety.

K. 2887.

New party.

R. 222888, 2890.

when filed.

R. 22892.

SEC. 2661. A co-maker, or surety, when sued alone, may, with the consent of his co-maker or principal, avail himself by way of counter claim, of a debt or liquidated demand due from the plaintiff at the commencement of the suit to such co-maker or principal, but the plaintiff may meet such counter claim in the same way as if made by the co-maker or principal himself.

SEC. 2662. When a new party is necessary to a final decision upon a counter claim the court may either permit such party to be made, or direct that it be stricken out of the answer and made the subject of a separate action.

SEC. 2663. When a defendant has a cause of action affecting Cross petition the subject matter of the action against a co-defendant, or a person not a party to the action, he may, in the same action, file a cross petition against the co-defendant or other person. The defendants thereto may be notified as in other cas s, and defense thereto shall be made in the time and manner prescribed in regard to the original petition, and with the same right of obtaining provisional remedies applicable to the case. The prosecution of the cross petition shall not delay the trial of the original action, when a judgment can be rendered therein that will not prejudice the rights of the parties to the cross petition.

Demurrer to answer.

R. 22894.

The dismissal of the original peti- Cross-petition of one defendant tion after the filing of a cross-petition | against another, held proper in a parwill not operate as a dismissal of such ticular case: Rose v. Schaffner, 50cross-petition: Spearing v. Chambers, 483. 25-99.

SEC. 2664. When the facts stated in the answer, or any count or division thereof, are not sufficient to constitute a defense or counter claim, the adverse party may demur, and shall be held to the same certainty in the statement of the grounds therefor as obtains in a demurrer to the petition.

plaintiff may demurr to one of them only, and the defendant will not be allowed to object thereto on the ground that the demurrer does not go to the whole count: Wright v. Connor, 34–240.

In cases where no reply to an an- [ joined in one count of the answer. the swer is necessary, the party demurring thereto, whose demurrer has been overruled, if he elects to stand thereon, must so state, and have the fact shown of record. A mere exception to the ruling will not be sufficient: Wilcox v. McCune, 21-294. As to demurrers generally, see § § Where two defenses are improperly | 2643, 2649 and notes.

REPLY.

SEC. 2665. There shall be no reply except:

1.

Where a counter claim is alleged; or,

When neces

sary.
K. 2895.

2. Where some matter is alleged in the answer to which the C. 51, 1741. plaintiff claims to have a defense, by the reason of the existence of some fact which avoids the matter alleged in the answer.

The allegations of an answer are | deemed denied without a reply unless a counter claim is pleaded. (§ 2712 and notes); but if plaintiff expects to introduce evidence of matter to avoid the facts pleaded in the answer (as that an assignment set up in the answer is a forgery) he should plead such fact by way of reply: Hay v. Frazier. 49-454.

Barger v. Farris, 34-228; Noble v.
Steamboat, etc., 23-109; Corbin v.
Beebe, 36-336; and as other cases
under the Revision, see Stuart
v. Hines, 33-60, 101; Gwyer v Fig-
gins, 37-517. It was to obviate this
construction that the second para-
graph of the section as it stands in
the Code was added: Code Com'rs'
Rep. p. 95.

Plaintiff cannot be required to file
a pleading, confessing and avoiding,
or denying the allegations in the an-
swer or coss-petition: Cassidy v.
Caton, 47-22.

Under the Revision, however, no reply to affirmative matter in an answer not setting up a counter claim was necessary, and it was held that where defendant set up a release or other affirmative matter, the plaintiff Where facts, which might be set might meet the issue raised by op-out by way of reply, appear affirmaeration of law by proving fraud, etc., tively in the answer, no reply is newithout having set up such fraud cessary: Scott v. Luther, 44-570. either in his petition or in a reply:

Statements of

SEC. 2666. When a reply must be filed, it shall consist of: 1. A general or specific denial of each allegation or counter R. & 28:6. claim controverted, or any knowledge or information thereof sufficient to form a belief; or,

2. Any new matter not inconsistent with the petition constituting a defense to the matter alleged in the answer; or the matter in the answer may be confessed, and any new matter alleged, not inconsistent with the petition, which avoids the same.

[The word "petition," in the first line of the second subdivision, as it stands in the original, is "position" in the printed code.]

defenses stated.

SEC. 2667. Any number of defenses, negative or affirmative, Any number of are pleadable to a counter claim, and each affirmative matter of R. 2897-8. defense in the reply shall be sufficient in itself, and must intelligibly refer to the part of the answer to which it is intended to apply. A division of equitable matter must also be separated into paragraphs and numbered as required in case of such matter in the answer.

SEC. 2668. When the facts stated in the reply do not amount Demurrer to to a sufficient defense, the defendant may demur, subject to the R. 2809. same requirements of certainty in statements of grounds thereof as obtain in demurrer to the petition.

VERIFICATION.

ing verified,

SEC. 2669. Every pleading must be subscribed by the party when picador his attorney, and when any pleading in a case shall be verified subsequent by affidavit, all subsequent pleadings, except demurrers, shall be pleadings must verified also; and in all cases of verification of a pleading, the R. 2001.

be.

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may be.

affidavit shall be to the effect that the affiant believes the statements thereof to be true.

Provisions as to verification are ap- | set forth in the petition were true: plicable in equity as well as at law: Sherrill r. Fay, 14-292. See note to § 2679.

An affidavit referring to "the foregoing petition," without giving the title of the action, held, sufficient: Lery v. Wilson, 43-605; so held, also, where the affidavit was that the facts'

Plaintiff may be allowed to amend his petition by adding a verification, and, although defendant has already answered, he will be in defauit unless he respond with a sworn answer: Wilson v. Preston, 15–246.

SEC. 2670. Where a corporation is a party, the affidavit may be made by any officer thereof.

SEC. 2671. When there are several parties united in interest, the affidavit may be made by any one of them.

SEC. 2672. If the pleading be founded on a written instrument for the payment of money only, and such instrument be in possession of the agent or attorney, the affidavit may be made by such agent or attorney, so far as relates to the statement of the cause of action thereon; but when relief is asked other than a money judgment or decree of foreclosure, the affidavit must contain averments showing competency as herein provided.

SEC. 2673. If the statements of a pleading are known to any person other than the party, such person, may make the affidavit, which shall contain averments showing affiant competent to make the same.

Where the person making the affidavit states that "he knows the facts therein stated to be true," the competency of such person to make the affidavit sufficiently appears. Why he thus "knows" is not required to be stated: Zoe r. Nichols, 51-330; but where an attorney did not state in his affidavit that he had any knowledge as to the truth of the alle

gations of the pleading verified by him, held, that it was properly stricken from the files: Chute v. Hazleton, 51-355.

Verification by the agent of the plaintiff, both as to the cause of action and the grounds for attachment, held, sufficient in a particular case: Rausch v. Moore, 48-611.

SEC. 2674. Where the petition is not verified, and the answer Counter claim contains a counter claim, the same may be verified apart from the defense part of the answer, and the foregoing provisions are applicable to the counter claim as if the same were a separate pleading.

Where an answer is required to be up which is not verified: Innes v. verified, a counter-claim may be set Krysher, 9–295.

SEC. 2675. Verification shall not be required to any pleading Guardian, exe of a guardian, executor, or prisoner in the penitentiary, nor to R. 2010, 2912 any pleading controverting the answer of a garnishee, nor to one grounded on an injury to the person or the character.

cator, prisoner.

SEC. 2676. When it can be seen from the pleading to be When cannot answered, that an admission of the truth of its allegations might subject the party to a criminal prosecution, no verification shal be required.

be required. R. 2911.

Effect if not verified. R. 2916

SEC. 2677. If a pleading be not duly verified, it may be struck out on motion; but such defect will be deemed waived if the other party respond thereto, or proceed to trial without such motion.

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