Armstrong v. Mayer

• Decision Date: 20 May 1903
• Docket Number: 12,820
• Citation: 95 N.W. 51,69 Neb. 187
• Parties: ALVIN H. ARMSTRONG ET AL. v. SIMON D. MAYER ET AL
• Court: Nebraska Supreme Court

95 N.W. 51

69 Neb. 187

ALVIN H. ARMSTRONG ET AL. v. SIMON D. MAYER ET AL

No. 12,820

Supreme Court of Nebraska

May 20, 1903

ERROR to the district court for Lancaster county: ALBERT J CORNISH, DISTRICT JUDGE. Reversed. Petition and cross-petition dismissed.

REVERSED.

Lionel C. Burr, Elmer Ellsworth Spencer and Charles O. Whedon, for plaintiffs in error.

Walter J. Lamb and Robert Ryan, contra.

POUND C. DUFFIE and KIRKPATRICK, CC., concur.

OPINION

POUND, C.

In July, 1899, Mayer Brothers, hereinafter called the defendants, became the owners of the building in controversy. At the time of the conveyance, said building was occupied by the Armstrong Clothing Company, a partnership, hereinafter referred to as the plaintiffs, under an assignment to one of the partners of a lease made to another firm by the former owners. The lease expired on February 1, 1900. At its expiration, the plaintiffs refused to surrender possession, and proceedings in forcible detainer were brought by the defendants, which resulted in a finding of guilty and a judgment accordingly. From this judgment, the plaintiffs took an appeal to the district court, and, upon judgment going against them in that court, prosecuted error in the supreme court. In the latter tribunal, however, it was determined that there was no right of appeal from the justice's to the district court in such cases, as the statutes then stood. Armstrong v. Mayer, 60 Neb. 423, 83 N.W. 401. Thereupon the plaintiffs procured a bill of exceptions from the justice before whom the cause was first tried and filed it with a transcript and petition in error in the district court, in order to obtain a review of the judgment. While this petition in error was pending, they brought the present suit. The petition sets forth the proceedings in the justice's court, the pendency of the petition in error, and the execution, filing and approval of a proper supersedeas bond. It alleges further that summons in justice's court was served upon Alvin H. Armstrong only, that the Armstrong Clothing Company was not a party, and that Samuel G. Armstrong was not served; that the plaintiffs and defendants are competitors in business, and that the defendants, for the purpose of injuring plaintiffs in their business and of preventing competition, were threatening and about to procure the issuance of a writ of restitution and cause such writ to be executed, and to forcibly and unlawfully put the plaintiffs out; that plaintiffs had a large stock of goods and merchandise in said building, of the value of $ 40,000 and upwards, that there was no other place available in the city of Lincoln for their business, and that irreparable injury would result. They prayed for an injunction restraining the defendants from instituting any proceedings at law or in equity to obtain possession of the building, from interfering in any way with plaintiffs' possession, and from taking or attempting to take possession of the building or any part of it. Before this cause could be heard, the petition in error was disposed of in the district court, adversely to the plaintiffs, and proceedings in error were taken in the supreme court to review the judgment of affirmance. These proceedings also resulted adversely to the plaintiffs. A writ of error was then obtained from the supreme court of the United States, but the cause was dismissed in that court for want of jurisdiction. Armstrong v. Mayer, 183 U.S. 693, 46 L.Ed. 393, 22 S.Ct. 933.

After the district court had affirmed the judgment of the justice of the peace, but before the present suit came on for hearing, the defendants, by leave of court, filed a cross-petition, in which they set up a conspiracy on the part of the plaintiffs to withhold possession of the premises wrongfully and to extort money from defendants as a condition of surrendering possession, and alleged that pursuant to such conspiracy the plaintiffs had been guilty of wrongful and malicious abuse of process in the prosecution of unfounded and groundless appeals and proceedings in error, without any probable cause. They alleged further that by reason of plaintiffs' wrongful withholding of possession and of such malicious abuse of process, they had been deprived of the use of a room adjacent to the building in controversy, which they had rented solely for use in connection therewith, and were not able to make use of otherwise; that the plaintiffs, on vacating the premises, wrongfully removed certain fixtures; that they committed certain acts of waste, and in particular failed to keep the roof in repair and to care properly for the heating plant. By a supplemental cross-petition, they set up certain further items of damage along the same lines. They prayed, among other things, for an accounting of their damages by reason of the several matters alleged, and for judgment against the plaintiffs therefor. Upon trial of these issues, the court found for the defendants, dismissed the petition, found the sum of $ 12,192.76 due the defendants as damages upon their cross-petition, and rendered judgment against the plaintiffs accordingly.

Although the plaintiffs contend that the district court erred in dismissing their petition, we do not think there is any serious question that the decree is correct in this particular. As we see it, the sole question to be decided is whether the defendants were entitled to maintain their cross-petition or should have been remitted to a separate and independent action at law. The right of the defendants to litigate their several claims for damages in this cause was contested below by demurrers, by motions at the trial, by requests for trial by jury, by protestations in the answers and by motion for a new trial, and we are of opinion that it has been challenged sufficiently and is before us for determination.

A considerable portion of the plaintiffs' argument in this court is devoted to the proposition that the claims for damages set up by the defendants are not available as counter-claims under sections 100 and 101 of the code, and were not maintainable in the present cause for that reason. But we think a defendant in an action is not restricted to the counter-claim provided for in said sections, but, in a proper case, may seek affirmative relief, either against the plaintiff or against codefendants, by cross-petition. The code of this state contains no provisions with reference to cross-petitions. Nevertheless the practice of filing them has long obtained in this jurisdiction, and the right to bring a cross-suit auxiliary to and dependent upon the original suit, yet distinct for many purposes, has been recognized, at least, repeatedly. Hapgood & Co. v. Ellis, 11 Neb. 131, 7 N.W. 845; Carlow v. Aultman & Co., 28 Neb. 672, 44 N.W. 873; Arnold v. Badger Lumber Co., 36 Neb. 841, 55 N.W. 269; Patten v. Lane, 45 Neb. 333, 63 N.W. 938; Havemeyer v. Paul, 45 Neb. 373, 63 N.W. 932. In several jurisdictions where there are no provisions on this subject in the codes, the equity practice which allows affirmative relief upon cross-bill has been adopted even to the extent of allowing new parties to be brought in. Sims v. Burk, 109 Ind. 214, 9 N.E. 902; Killian v. Andrews, 130 Ind. 579, 30 N.E. 700; Hopkins v. Gilman, 47 Wis. 581, 3 N.W. 382. Even where the codes expressly provide for cross-petitions against codefendants, cross-petitions for relief against the plaintiff, not provided for in the codes, are recognized by the courts. Radcliffe v. Scruggs, 46 Ark. 96; Russell & Co. v. Lamb, 82 Iowa 558, 48 N.W. 939; Cramer v. Clow, 81 Iowa 255, 47 N.W. 59. We think this long established and well recognized practice has a sufficient basis in sections 1 and 429 of the code, and in the consideration that in cases where the code is silent, remedies furnished by the old common law or equity practice, not inconsistent with its provisions, may be resorted to in order to prevent failure of justice. Section 429 provides that the court, in rendering judgment, "may determine the ultimate rights of the parties on either side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled." In construing a similar provision in the code of Indiana, the supreme court of that state said:

"The statute expressly confers power to determine the rights of the parties on each side of the case, as between themselves, when the justice of the case requires it. * * * The mode of procedure, however, is not pointed out by the statute, and, as the authority given is one previously possessed only by courts of chancery, we suppose the rules of pleading and practice of those courts, modified by the spirit of the code, must be resorted to." Fletcher v. Holmes, 25 Ind. 458.

It may be admitted that the code of Indiana has a provision expressly authorizing such resort to the old practice. But in the language of a well known text-writer, "this provision must be understood everywhere. No court would deny one's right, or invent an original mode of proceeding for protecting it, because of an omission in the code, so long as the common law or equity practice furnished a remedy." Bliss, Code Pleading (3d ed.), sec. 390. Hence, we are of opinion that a cross-petition is maintainable under the code, as a cross-bill would be in the chancery practice, either to aid in the defense of the original suit, where affirmative equitable relief is required to make such defense effective, or to obtain a complete adjudication of the controversies between the original complaint and the cross-complaint over the subject matter of the original suit. Otherwise, the doctrine that a court of equity, having obtained jurisdiction, will retain the cause for complete determination, and the jurisdiction of equity to prevent a...