Gostorfs v. Taaffe, McCahill & Co.

Citations

• 18 Cal. 385
• 1861 Cal. LEXIS 204

Syllabus

<p>Plaintiff sued on a note made by defendants to his order, the complaint not being verified, but setting out the note. Defendants plead payment. Plaintiff, on affidavits that the plea was false and plead in bad faith, moved to strike out the answer and for judgment. Granted: Held, that the action of the Court was right; that under the fiftieth section of the Practice Act “ sham ” answers and defenses are such as are good in form, but false in fact and pleaded in bad faith; and that such answers, when consisting of affirmative defenses, should be stricken out.</p> <p>Query. Whether this section of the Practice Act applies to any but affirmative defenses 1</p> <p>When plaintiff moves on affidavit to strike out a defense as “ sham,” the affidavit of defendant that his defense is bona fide will defeat the motion.</p>