Valley Bank & Trust Co. v. Wilken

The majority opinion denies the defendants a trial on the basis of a pleading deficiency that is so hypertechnical as to recall the happily forgotten elaborate intricacies of common law pleading, to say nothing of code pleading, which our Rules of Civil Procedure displaced several decades ago. It is true that failure of consideration is an affirmative defense under Rule 8(c), but in ruling that because defendants did not plead failure of consideration, they could not properly raise the issue by an affidavit on a motion for summary judgment at the outset of the case, the Court ignores the…