Brisbin v. American Express Co.

Ripley, Cii. J.

By the Court McDonald recovered a verdict against the Express Company for the loss of his trunk. During the pendency of an appeal from the order of the district court denying a motion for a new trial, the Express Company settled with McDonald, dropped their appeal, and moved to dismiss the action in the district court. Plaintiffs, the attorneys for McDónald in said suit, and in other proceedings in the complaint stated, thereupon brought this action; alleging themselves to have become, by reason of the transactions with McDonald alleged, the owners of the verdict prior to said settlement, in payment for their services in said suit and proceedings: that the Express Company settled with McDonald, knowing that plaintiffs claimed an interest in the verdict and contriving with McDonald thereby to defraud plaintiffs of their demands ; that said verdict was the only means by which plaintiffs could be paid, and that they would be without remedy if the motion was granted, and praying that the settlement might be annulled, and that they be declared owners of the verdict and allowed to prosecute it, and that defendant bo enjoined from prosecuting said motion or intermeddling with said verdict or action.

Defendants, the American Express Company, demurred to the complaint, and the demurrer was overruled. They then filed an answer, portions of which were struck out on motion, and upon filing an amended answer, plaintiffs moved to strike out certain portions thereof, as irrelevant, ■redundant, not in conformity to the statute, as containing the evidence of facts and not allegations of material facts, and as having been in substance upon motion once stricken from defendants’ answer.

*47 The motion was granted, and defendants appeal. “ To regulate the form of the issues, strike out irrelevant or redundant matter and allow additional allegations where the parties have made no agreement respecting the same, may properly be considered matters within the discretion of the court', and its order not the subject of appeal.” Bingham vs. Board of Supervisors of Winona Co., 6 Minn., 136, p 145 .

A motion to strike out such matters would not put the moving party in the same position as if a demiirrer were interposed to the complaint. That admits to be true only what is well pleaded; the object of the motion is to correct bad pleading. The remarks above quoted, however, are of course to be understood to be subject to the general exception, that no abuse of the discretion of the court below is shown as if facts constituting a meritorious defense, well pleaded, were so struck out. An order striking out such allegations would go to the merits of the action. Starbuck vs. Dunklee, 10 Minn., 168.

Upon examining what is here so struck out, we see no improper exercise of the discretion of the court below. Plaintiffs claim to own the verdict obtained by McDonald against the Express Company, who cannot, in this action, try again the issues determined by that verdict.

The statement of the causes of their default in that action and of their efforts to be relieved from it are therefore immaterial, as the court below has found.

Supposing the verdict to have been obtained by fraud and perjury, it is voidable only in proper proceedings in the action in which it was obtained.

And, if it be said that this defense does not seek to re-open the verdict, but only to show its groundlessness as a reason why a court of equity should not aid plaintiff to enforce it, it may be replied that this is not a suit to enforce the verdict. *48 It can be prosecuted and enforced, as it can be avoided, only in the action wherein it ivas obtained. The defendants, after taking steps to avoid it, voluntarily settled with McDonald and dropped their appeal. If the settlement was fair, without notice of any valid claim of plaintiffs, it will protect them. If otherwise, and the verdict can not now be opened, how can they ask to be heard against the consequences off their own voluntary act?

An amended answer drawn with the latitude allowed by the district court, would contain all the allegations that upon these pleadings appear to be material. We agree with it in the opinion that while some of these are embraced in those portions of the answer stricken out, yet they are so mingled with immaterial allegations as to make it difficult if not impossible to separate them and leave an intelligible answer. As to the second alleged defense, it is obviously wholly immaterial in a suit brought to prevent the dismissal of the action of McDonald vs. the Express Co. whether or not the plaintiffs had agreed to pay over the proceeds of the latter to any other person. The appeal is dismissed.