CHAPTER XIV. SHAM ANSWERS AND IRRELEVANT OR FRIVOLOUS PLEADINGS. A sham answer is one that is false in fact. A frivolous answer is one which, assuming its contents to be true, presents no defense to the action; and a pleading is irrelevant which has no substantial relation to the controversy between the parties to the action. 1 The right of a defendant to a trial by jury depends upon a real issue to be tried. If the answer therefore, is evasive, and shows upon its face that it is false, the court has power, and it is its duty if it finds that the answer is destitute of truth and substance, to hold that it presents no real issue, and sustain a motion to strike it out. 2 Alleged want of knowledge. Where the purchasers of the equity of redemption, who had record notice at least of a mortgage on the real estate, answered in effect that they had no knowledge or information sufficient to form a belief as to 1 Brady, J., in Struver v. O. Ins. Co., 9 Abb. Pr. 23; Clark v. J. M. & Ind. R. Co., 44 Ind. 248. People v. McCumber, 18 N. Y. 315; Kay v. Whittaker, 44 Id. 565. At common law sham pleas were treated as a nullity. Tidd Pr. 584-5; Stephens Pl. 442. It is said: "Persons engaged in vexatious defenses have taken advantage of this difficulty (in detecting the falsity of a pleading) by resorting to the practice of what is called sham pleading, that is, pleading for the mere purpose of delay a matter which the pleader knows to be false. The plea that has been most commonly adopted for this purpose is the plea of judgment recovered." The use of this plea was And the existence of the mortgage, the answer was stricken out.1 And when certain matters alleged to be of record were involved in the action, an answer that the defendant had not sufficient knowledge or information on which to form a belief was held to be frivolous. To authorize the striking out of an answer as sham, it is not enough that the court should perceive but little prospect of a result favorable to the defendant, nor even that the plaintiff's ultimate success should, upon the affidavits produced, appear to be indubitable. The answer must be false in the sense of being a mere pretense set up in bad faith and without color of fact.3 General denial not sham. An answer which contains a general denial of the cause of action alleged in the petition cannot be stricken out as sham.a Nor can an answer denying "the said complaint in each and every allegation therein contained," be held to be frivolous, 5 And where it was alleged in the petition that, at a time stated, the plaintiff had demanded payment of interest on the instrument sued on at the office of the corporation, which interest was not paid, and there was a default, the defendant answered that it had no knowledge or information sufficient to form a belief, and therefore denied the same, it was held sufficient to require the plaintiff to prove the demand. 6 So, in an action on a promissory note made by a third party, it was alleged that the defendant, for value, executed a contract in writing to pay the note. The answer being a general denial, it was sustained. 7 Not a sham answer. Where two actions are consolidated, the answers in which are precisely alike, one of such answers cannot be stricken out as sham.8 And an answer denying, on information and belief, that plaintiff is the holder and owner of SHAM ANSWERS AND IRRELEVANT OR FRIVOLOUS PLEADINGS. 555 the note sued on, and alleging that another is the holder and owner thereof, will not be stricken out as sham. 1 Insufficiency of form and substance. An answer that is insufficient in form and substance is not necessarily frivolous." A frivolous plea must be so clearly and palpably bad as to indicate bad faith on the part of the pleader on bare inspection. 3 Thus, a denial of indebtedness, or that the plaintiff is entitled to the amount claimed, without denying the facts showing the liability of the defendant, is frivolous. So, where the making of a negotiable promissory note for value, and its indorsement to the plaintiff before due, is not denied, an answer that the arrangement between the parties was that it was not to be negotiated, is frivolous. 5 A demurrer is frivolous where the pleading objected to is not open to the objection raised, or where it is interposed for a cause not authorized by statute. 6 Redundant and irrelevant matter. Where matter inserted in a pleading has no connection with the cause of ac-' tion, it is irrelevant, and the same is true of mere evidence when pleaded. MOTION TO STRIKE SHAM ANSWER FROM THE FILES. [Title of cause.] The plaintiff moves the court to strike the answer of the defendant, C D, from the files, for the following reasons: 1 1 Id. The general rule is, that where, from the nature of the case, the defendant will not be presumed to have knowledge of the plaintiff's rights, but he has reason to deny the same, he may do so upon information and belief. An allegation that the plaintiffs are the same. parties who obtained the judgment they are seeking to enforce, is not sufficiently denied by an allegation in substance that the defendants have neither knowledge nor information sufficient to form a belief, and therefore deny the same. Stevenson v. Flournoy, 13 S. W. R. 210. And in an action by a city to recover taxes, an answer that the defendant has no information sufficient to form a belief as to whether certain ordinances were ever published, etc., is not sufficient. Greer v. City of Covington, 83 Ky. 410 2 Youngs v. Kent, 46 N. Y. 674; Erwin v. Lowery, 64 N. C. 321; Swepson v. Harvey, 66 Id. 436; Bliss Code Pl. 421. 3 Allen, J., in Strong v. Sproul, 53 N. Y. 497; Cottrill v. Cramer, 40 Wis. 555; Bliss Code Pl. § 421. 1 Drake v. Cockroft, 4 E. D. Smith, 34; Fosdick v. Groff, 22 How. Pr. 158. 146. 5 Plant v. Schuyler, 4 Abb. Pr., N. S. 6 Appelby v. Elkins, 2 Sandf. 673; McMahon v. Bridwell, 3 Mo. App. 572; Ferguson v. Troop, 16 Wis. 571; Kenworthy v. Williams, 5 Ind. 375. First. The answer is sham, and not interposed in good faith, as the defendant is charged with notice of facts sufficient to answer properly. Second. [State any other ground.] ORDER ON MOTION. This cause came on for hearing on the motion of the plaintiff to strike the answer of the defendant from the files, because the same is sham, on consideration whereof the court doth [sustain] said motion. 1 1 If the motion is overruled, insert the word "overrule" in place of the word "sustain." CHAPTER XV. THE REPLY. The reply is the last pleading of fact of the plaintiff. He may demur to one or more of the defenses set up in the answer, stating in his demurrer the grounds thereof; and, where the answer contains new matter, the plaintiff may reply to such new matter, denying, generally or specifically, each allegation controverted by him; and he may allege, in ordinary and concise language, and without repetition, any new matter, not inconsistent with the petition, constituting a defense to such new matter, in the answer. A reply must be made to all the material allegations of new matter contained in an answer, or they will be taken as true. 1 Burden of proof. When new matter set up in an answer is denied by the reply, the burden of proof is on the party alleging the same as a defense. 2 A very objectionable form of reply is to deny all the facts stated in the answer, or some count thereof, inconsistent with the petition, or to deny the "material allegations" of a pleading. The plaintiff should be required to state specifically what he denies. Williams v. Evans, 6 Neb. 216; Payne v. Briggs, 8 Id. 75. 2 In California and Nevada no reply is necessary. In New York, North Carolina, South Carolina, Minnesota, Arkansas and Wisconsin no reply is required, except to a counter-claim or set-off, although in some of these states the court, on motion, may require a reply to new matter. In Indiana, Kansas, Missouri, Nebraska, Ohio and Oregon a reply is required to all new matter set out in the answer. Kentucky seems to require the common law cross-pleadings. Bliss Code Pl. § 393- When the answer contains new matter, the plaintiff may reply thereto, denying the same generally or such portions of the answer as are controverted, and may also allege any new matter, not inconsistent with the petition, constituting a defense to such new matter. The defendant may waive the filing of a reply, and, if the case is tried upon the presumption that the new matter in the answer is denied, it will be considered that the reply was waived. Hopkins v. Cothran, 17 Kas. 173. In the case cited an amended answer was filed, containing new matter, which on |