King v. Waite

Citations

• 10 S.D. 1
• 70 N.W. 1056
• 1897 S.D. LEXIS 3

Syllabus

<p>1. An appeal will not be dismissed for delay in filing the record, and serving abstract and briefs, except in an extreme case.</p> <p>2. The mere fact that a notice of application for leave to file an amended answer fixed the hearing “at the hearing of plaintiff’s motion to strike out defendant’s answer” does not make the application to amend a proper part of the record on appeal from an order granting the motion to strike out where it was no part of either party’s case on such motion. .</p> <p>3. A verified answer, unqualifiedly denying essential allegations of the complaint, cannot be stricken out as sham, defendant having a constitutional right to a trial on the issue.</p> <p>4. The striking out of such an answer is not justified by the fact that defendant’s affidavit on the motion to strike out makes admissions which are inconsistent with the answer, and seem to support plaintiff’s case.</p>