Bank of Commerce v. Humphrey

Citations

• 6 S.D. 415
• 61 N.W. 444
• 1894 S.D. LEXIS 167

Syllabus

<p>1. Where, in an action by a bank upon a promissory note made to it, a defendant answers that he signed the note as surety,' and not otherwise, for the debt of the principal maker of the note, all of which the bank knew; and that the pi’incipal maker had, at the maturity of the note, and frequently since, more unappropriated money on deposit with the plaintiff bank, to his personal account, than would pay such note, which the ba.nk has failed to apply to the same, and thus discharge said surety, — plaintiff is not entitled to judgment on the ground of the frivolousness of such- answer.</p> <p>2. An answer ought not to be held frivolous which presents a defense which never having been passed upon and settled in this state, is held good by the highest courts of some other states, even though the weight of authority may seem to be against such holding.</p> <p>3. In such action, an answer by a surety that the time for the payment of the note has repeatedly been extended for the principal maker by the said bank without the knowledge or consent of such surety is strongly suggestive of a good defense imperfectly pleaded, and, while it might be demurrable, it should not be held to be frivolous.</p> <p>4. A frivolous answer is one so clearly and probably bad as to require no argument or illustration to show its character, and which would be pronounced frivolous and. indicative of bad faith in the pleader upon a bare inspection.</p> <p>(Syllabus by the court.</p>