Wichita eagle., 1888-12-26
GAY BaRTHoLAMEw.

in the district court of Sedgwick county
is likely to be case of more than usual
interest and importance. not only to the
htigants, but to persons interested In the
foreclosure of mortgages in this state, as
well as leading case in some matters OF
practice among the lawyers OF the state.
In this case plaintiff filed his
petition to foreclose certain mort
gage on the lands known as
Bartholamew's Park, and alleges that
a certain amount of money was due on
said mortgage. The defendant In
due time filed his answer alleging pay
ment of the mortgage debt. The plain
tiffs then, in order to show that the an
swer was false, summoned the defendant
before notary public and sought to take
his deposition. but defendant refused to
testify, whereupon the notary committed
him for contempt. The defendant then
sued out writ of habeas corpus in the
district court. The court, upon these
facts, held that under the statute the de-
fendAnt could not be required to
testify. There being no motion then
pending to strike the answer from the
| files as false, the statute provides that
the deposition of the witness may be
used, in cases ''where testimony Is re-
quired upon motion, or in any other
case where oral testimony Of the witness
is not required. See code 1855, p GAS,
section 4156, clause 8.
This disposes of the question SO far as
the district court is concerned, that the
defendant cannot be required to testify
whore he is within the jurisdiction OF
the.court and likely to be present on the
trial of the issue, when it is sought to
take his deposition. or in other words
under the present law fishing viii not be
allowed to secure information TO be used
on the trial Of the issue. But the court
intimates, obiter dictum, that if mo-
ton was pending to strike the answer
| from the files as false, the defendant
might be required to testify for the pur-
| poses of the motion under the statute
above quoted. That this would be true II
the motion could be entertained there IS
little doubt.
But can such a motion be entertained
by the court? if so it would obtain as to
all pleading from the petition to the rep
LEGATION or reply to the answer. Now
! let us see what the result would be on a
motion to strike out pleading for falsi-
ty. The same evidence must Of necessi-
ty be admissible as that used upon the
trial, as the merits of the facts pleaded
are to be tried. Upon the motion the
court assumes the province OF jury at
once and tries the merits of the issue
joined by the pleadings, and upon the
findings will strike the answer from the
files as untrue, or decline to do
so. 1t is held in Orne VS.. Cook,
81 I'll. 239, that "the court has
no right to strike out the pleading be-
cause they are not sustained by the evil
dence for that would be to take the issue
from the jury" If this cannot be done
at the trial during the regular introduce
ton Of evidence it seems to us fortiori,
it could not be done by an irregular
method on motion. The practical effect
of such course would be the trial of
the issue Joined by the pleadings on
single motion. ON af61avits taken ex
parte thus would be repugnant to all
fundamental legal procedure. 1t would
prevent discrimination of witnesses
and deprive the parties of trial by jury
there can be no other alternative II the
truth of the pleedings are to be tried.
Let us put the case. A files his petit
ton and alleges that B executes to him
promissory note for $500, which is Who'll
" unpaid, that the said sum of $500 is
due to him, ard that B to secure the pay
ment of the $500 executed and delivered
to him mortgage deed and asks that he
have Judgment against b for the
amount and that the mortgage be fore
closed, if B fails to answer the court
must believe A and give him
a Judgment. But B comes and files his
answer and says it is true | gave A the
note and mortgage, but | have paid the
same. Now the court can't say who
speaks the truth, and while it may pass
on all questions as to the regularity of
the pleadings, and even determine what
issues they raise, yet it must call jury
to pass upon the facts raised by the issue
made by the pleadings, and to determine
which of the pleadings are true. If the
motion TO try the truth of the answer
can be entertained by the court
then the court can pass upon all
the matters involved in the truth of the
pleading, and, any and all evidence
necessary for the defence must be INTRO
duced to support the plea, and when the
court has heard the evidence it is in a
condition to render judgment, on the
merits Of the case as fully as though the
issue had been regularly tried, before a
Jury in other words the result wonld be
a trial of the cause on motion. This we
apprehend never was and never will be
the law, there can not be found in the
books single case wherein such
practice ever prevailed. Again
if the court should so hold every pleader
would want to test the truthfulness of
his opponents plesdingly motion, for
each thinks the others pleading untrue.
In fact, that is the ''bone of contention"
"Thief meier felt the halter draw
With good opinion of the law"
Then after the court has heard the evi
dence on the motion the case must again
be tried by a jury, thus numbering the
court with double trial.
How far the court can exercise its
discretion in striking from the files
pleading because of its fraudulent /
abuse of the process of the court or be- /
cause it is not fled in good faith is an /
other question. In the case of Crosby VS.. |
Harris, in I16 Mass. 1T, it is held that /
when the court has authority TO enter /
tain the suggestion of fraudulent abuse |
of its process, upon a secondary motion |
TO dismiss without regular trial, it may 1
decline to do So and in Edwards VS..
Hopkins, 9TH Rhode Island. 1881, 1t is /
held that the power is incident in every /