PEACOCK v. UNITED STATES, 125 F. 583

HAWLEY, District Judge, after stating the facts, delivered the opinion of the court. 1. It is claimed that the motion to strike out portions of the answer was an inappropriate remedy; that the points should have been reached by demurrer, by motion to render the answer more definite or certain, or by motion for judgment on the pleadings. Conceding that the objections to the averments might have been presented by either of the methods suggested, it does not follow that the course pursued in this case was either inappropriate or erroneous.

The remedy to strike out portions of a pleading which are objectionable upon any of the grounds stated in the motion has been frequently recognized and enforced by the courts.' Denver R. L. Co. v. Union Pacific (C. C.) 34 Fed. 386, 390; Buller v. Sidell (C. C.) 43 Fed. 116; Gilchrist v. Helena S. & S. R. Co. (C. C.) 47 Fed. 593; Tabor v. Commercial Nat. Bank, 62 Fed. 383, 387, 10 C. C. A. 429; Wallace v. Bacon (C. C.) 86 Fed. 553; McDonough v. Evans Marble Co., 112 Fed. 634, 50 C. C. A. 403; 14 Ency. Pl. & Pr. 80, and authorities there cited. 2.

It is next urged that the denials in the answer which were stricken out were sufficient. A bare reading of the statement of facts will carry conviction to the mind that this contention cannot be sustained. The averments in the answer were clearly evasive, and in several respects were ambiguous and uncertain.

It is true that, where the facts alleged in a complaint are not within the knowledge of the defendant, and which, from their nature and character, are such as might not readily be ascertained by him, the defendant may so state in his answer, and place his denial on that ground, and in such a case the defendant ought at least to show how it happened that he was without knowledge as to such facts. As was said by Justice Field in Curtis v.

Richards, 9 Cal. 33, 38: “If the facts alleged in the complaint are presumptively within the knowledge of the defendant, he must answer positively, and a denial upon information and belief will be treated as an evasion.” See, also, Gas M. Co. v. Neuse M. Co., 91 N. C. 74. In the present case it clearly and affirmatively appears upon the face of the petition that the matters therein alleged were matters of public record within the reach of the defendant, and by an examination thereof he could readily have ascertained the trutli or falsity of the averments' which he was called upon to answer.

It further appears that he was directly connected with the transactions set forth in the petition, and must have known what did occur in relation thereto. Or, if the matters referred to had escaped his memory and recollection, he could and should have gone to the records and ascertained the facts before making his answer. In Bliss on Code Pl. § 326, the author said: “If the fact charged is evidently within the defendant’s knowledge—as

an act done by himself, and within the period of recollection, or where he has the means of information—a denial of information in the language of the statute would be clearly false or evasive, and such an answer should be disregarded.” Dixon, C. J., speaking for the court in State v.

McGarry, 21 Wis. 496, 500, where the facts were similar to the case in hand, said: “I do not think, in cases of this description, that a defendant should be allowed to close his eyes and ears, and set up a want of knowledge or information.” The rule is universal that matters ot public record within the reach of the defendant cannot be denied on the ground that he had no sufficient information or belief concerning them. Wallace v. Bacon, supra; Elmore v. Hill, 46 Wis. 618, 624, 1 N. W. 235; Union L. Co. v. Board of Supervisors, 47 Wis. 245, 248, 2 N. W. 281; Carpenter v. Momsen, 92 Wis. 449, 456, 65 N.

W. 1027, 66 N. W. 692; Brown v. Scott, 25 Cal. 189, 195, 196; Loveland v. Garner, 74 Cal. 298, 300, 15 Pac. 844; Gribble v. Columbus B. Co.; 100 Cal. 68, 75, 34 Pac. 527; Mulcahy v. Buckley, 100 Cal. 484, 488, 35 Pac. 144; 1 Ency. Pl. & Pr. 813, and authorities there cited. In Union L. Co. v. Board of Supervisors, supra, where certain alleged irregularities were specified in the complaint, which affected the legality of the taxes, the defendants answered that they had no sufficient knowledge or information to form a belief.

The court said: “This answer is manifestly evasive and bad, because the public records within the reach of the defendants would enable them to positively and distinctly deny these defects in the tax proceedings if they did not exist. Mills v. The Town of Jefferson, 20 Wis. 50. This is really all the answer contains which professes to meet the case made by the complaint; and it is very evident that it shows no defense whatever, for the answer does not traverse and deny nor confess and avoid any of the material allegations of the complaint.” 3.

It is apparent that the separate and distinct answer to the petition was properly stricken out, because it does not deny any of the material facts alleged in the petition. It only seeks to set up the excuse that he did not know what the law was, and believed that all of the proceedings in relation to the registry of the vessel under the laws of the United States were “purely formal,” and that he did not read the same, or know the contents of the papers filed by him. These averments were immaterial and impertinent, and could not be received as a defense to the recovery of the penalty imposed by the law.

As was said by the court below, to allow such averments to remain “would be trifling with public justice, and would create false issues to be tried in said cause.” They certainly are not consistent with the solemnity of sworn pleadings before any legally authorized tribunal. 4. The court did not err to the prejudice of appellant in declining to postpone the trial of the cause until the Secretary of the Treasury should act upon the petition of defendant for a remission of the penalty.

Section 5292, Rev. St. [U. S. Comp. St. 1901, p. 3004], implies that such steps may be taken before the proceedings which have been instituted for a recovery of the penalty are tried. But it does not declare that upon the presentation of such a petition the proceedings in court shall be stayed until action is taken by the judge and by the secretary upon the petition, or that the petition cannot be acted upon after the judgment and decree are entered in the court. The action of the court in refusing to postpone the trial does not prevent action being taken upon the petition for a remission of the penalties.

The petition can be acted upon after the decree is entered as well as before. The trial by the court in this case was no invasion of the right of the Secretary of the Treasury to grant the remission of the penalty after the judgment was rendered, if, in his judgment and discretion, the case, as made in the petition, would warrant it. United States v. Morris, 10 Wheat. 246, 291, 295, 304, 305, 6 L. Ed. 314; The Laura, 114 U. S. 411, 415, 5 Sup. Ct. 881, 29 L. Ed. 147; Brown v. Walker, 161 U. S. 591, 601, 16 Sup. Ct. 644, 40 L. Ed. 819. 5.

It is contended that the evidence admitted on the trial was insufficient to justify the decree rendered by the court, in this“That there is no evidence in the record to show that on July 2, 1902, the appellant was not an American citizen. The only attempted proof was that on September 9, 1902, he was naturalized in the court below, and abjured allegiance to the British crown.” The record in the office of the Collector of Customs containing the oath taken by Mr. Peacock to secure the registry of the vessel called the “Julia E. Whalen” was produced in evidence, and the oath read therefrom by E. R.

Stackable, the collector. The oath, as shown by the record, was administered by “R. C. Stackable, special deputy collector.” The signature to the oath was proven to be in the handwriting of W. C. Peacock, appellant herein, and the testimony shows that on this oath the Julia E. Whalen was registered under the navigation laws of the United States. The collector was not present when this oath was administered. When this fact appeared, the court said: “Does the defendant deny that the oath was administered by some one? Mr. Breckons: He admits it.

The Court: If that is so, we will not hear any testimony about it.” No objection was made or exception taken to this ruling. Frank L. Hatch, deputy clerk of the United States District Court, testified that he administered the oath of naturalization to W. C. Peacock on September 9, 1902. Certain objections were made to questions asked as leading, and then “the defense admits that the defendant was naturalized on the 9th day of September, and took the usual oath.” This was substantially all of the evidence in the case upon the part of the government. W. C.

Peacock was then called, and testified in his own behalf as follows: “Q. You have heard read the oath admitted in evidence purporting to have been taken by you on the 2d of July, 1902? A. Yes, sir. Q. I will ask you whether you did on that occasion, on the date fixed by that oath, you remember being sworn. A. I have no recollection of it.” It is suggested by counsel for appellant that the naturalization oath may have been procured by appellant “to settle a doubt or to record a certainty,” but there was Ho evidence whatever tending to show that such was the purpose.

The pleadings and the evidence establish a prima facie case, and fully sustain the order, judgment, and decree of the court, which are hereby affirmed, with costs.