[DOWNLOAD] "Downs v. Nihill" by Supreme Court of Montana # eBook PDF Kindle ePub Free

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eBook details

• Title: Downs v. Nihill
• Author : Supreme Court of Montana
• Release Date : January 20, 1930
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 54 KB

Description

Pleading and Practice ? Inconsistent Defenses ? Motion to Strike Pleading ? Effect of Answer Pleading New Matter ? Order Striking Answer Error ? Appeal ? Presumption of Correctness of Action of District Court ? Sales ? Fraud. Appeal and Error ? Presumption of Correctness of Decision of Court ? Burden of Showing Error on Appellant. 1. The supreme court enters upon the consideration of an appeal with the presumption that the trial court was correct in its determination of the case, the burden being upon appellant affirmatively to show reversible error upon the record. Same ? Pleadings ? Motion to Strike Pleading in Effect General Demurrer to Pleading ? Admissions. 2. A motion to strike a pleading from the files is in effect a general demurrer to the pleading; hence the allegations stricken will be considered on appeal as admitted in determining whether the court erred in ordering it stricken. Pleading ? Answer may not be Stricken Where Issue Joined by Denial or Where Defense Stated on Any Possible Theory. 3. Where an issue is joined by denial, the answer may not be stricken from the files; nor should it be stricken if it states a defense on any possible theory. Same ? When Inconsistent Defenses may be Pleaded ? Test of Inconsistency ? When Admission Prevails Over Denial. 4. Inconsistent defenses may be pleaded, provided they are not so incompatible as to render the one or the other absolutely false; the test of inconsistency of defenses is whether or not the proof of one necessarily disproves the other; when one admits a fact and the other denies it, the admission must prevail over the denial. - Page 146 Same ? Answer ? New Matter ? Effect of Pleading. 5. The general rule, both under common law and Code pleading, is that where an answer seeks to avoid the complaint by allegations of new matter, the pleader thereby confesses that but for the avoidance pleaded, the action could be maintained. Same ? Contracts ? Answer ? Pleading New Matter ? Striking Answer Held Error. 6. In an action on a contract of sale of farm machinery, defendant, after denying the allegations of the complaint generally, interposed an affirmative defense based on fraud and misrepresentations of plaintiff seller, thus in effect admitting the making of the contract and nullifying the denial. The answer was stricken from the files on motion. Held, under the above rules of pleading, that the answer stated a defense in avoidance on the ground of fraud and that the court erred in striking it.

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