Whitwell v. Thomas
WHITWELL v. THOMAS
- Area
- civil
- Panel
- Lawrence F. Terry, Albert G. Burnett, Stephen J. Field
Analysis
No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.
Opinion — Fieldterryburnett
Field, J., delivered the opinion of the Court—Terry, C. J., and Burnett, J., concurring.
The only question for consideration is, whether any material averment of the complaint is denied by the answer. The test *500of materiality is this: Could the averment be striken from the pleading without leaving it insufficient ? (Practice Act, § 66.) Judged by this test, the averment of copartnership is immaterial. The complaint would be sufficient if this were stricken out. The execution of the notos—not the copartnership of the defendants at the time, constitutes the material averment, and this is not controverted.
Judgment affirmed.
Cited by
- Zany v. Rawhide Gold Mining Co. Civ. No. 781. · 1911-02-11
- Grangers' Union v. Ashe Civ. No. 677. · 1910-03-09