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91 Mont. 543

11 P.2d 798

Flatt v. Norman

Montana Supreme Court

Decided March 7, 1932

Montana Supreme Court · decided 1932-03-07

Good law ✅— No negative treatment on recordhow we know

Decided 1932-03-07

How this case has been cited

Cited by 6 later decisions — most recently October 1953

5 state decisions

20193219401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1 On Rehearing.

MR. JUSTICE GALEN

¶2 delivered the opinion of the court

¶3 In attempting to plead a cross-complaint against the plain- tiff, the defendants' answer is defective, in that the allegations upon which the defendants base their right of recovery from the plaintiff are all run together as affirmative defenses rather than the assertion of independent right of recovery from the plaintiff, separately stated, in form of a cross-complaint. As to the item of $600, alleged commissions due from the plaintiff to B. G. Brockway, and assigned to the defendants, see sections 9138, subdivision 2, and 9151, Revised Codes 1921. The answer is further defective in failing to allege that the defendants returned to the plaintiff or tendered to him everything by them received within a reasonable time after discovery of the alleged fraud. The answer is certainly not a model pleading; however, it is manifest that the court erred in sustaining the motion to strike, thus leaving the defendants stripped of defense asserted, however faulty the allegations. A motion to require the defendants to make the allegations of their answer more definite and certain, or a special demurrer, would have been proper; and in either event the defendants would not thereby have been denied right to make the defenses attempted to be pleaded, including their asserted cross-actions. When issues are properly framed, the defendants should be entitled to their day in court. Here the defendants were denied right of defense asserted, which amounts to a default judgment entered against them.

¶4 The original opinion, as amended by minute entry elimination of one paragraph, is reaffirmed and the conclusion reached therein sustained.

Mr. Chief Justice Callaway and Associate Justices Ford, Angstman and Matthews concur.
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