Carr v. Luscher

• Decision Date: 05 October 1892
• Citation: 53 N.W. 144,35 Neb. 318
• Parties: THOMAS CARR v. EDWARD M. LUSCHER
• Court: Nebraska Supreme Court

53 N.W. 144

35 Neb. 318

THOMAS CARR v. EDWARD M. LUSCHER

Supreme Court of Nebraska

October 5, 1892

ERROR to the district court for Lancaster county. Tried below before TIBBETS, J.

AFFIRMED.

Wooley & Gibson, for plaintiff in error:

The plaintiff in error appeared as defendant in justice's court and was entitled to appeal. The issues can be made up in the appellate court, and the trial court erred in sustaining the motion of plaintiff below to strike out that portion of the amended answer setting up a counter-claim. (Smith v. Borden, 22 Neb. 488; Andrews v Mullin, 14 Id., 248; Sanchez v. Candelaria, 23 P. [N. M.], 239; Wagner v. Evers, 20 Neb. 183; Code Civil Procedure, secs. 951, 1010.)

T. C Munger, contra:

The same issues must be tried on appeal that were tried in the court below. (Baier v. Humpall, 16 Neb. 128; Courtnay v. Price, 12 Id., 192; O'Leary v Iskey, Id., 137; Fuller v. Schroeder, 20 Id., 636; Sawyer v. Brown, 17 Id., 172; U. P. R. Co. v. Ogilvy, 18 Id., 638; Sells v. Haggard, 21 Id., 361; Clendenning v. Crawford, 7 Id., 476; Cain v. Harden, 1 Ore. 360; Marx v. Trussell, 50 Miss. 498.) A counter-claim is a separate cause, and if not presented below cannot be appealed. (Burbage v. Squires, 3 Met. [Ky.], 77; Cross v. Eaton, 48 Mich. 184; Wilson v. Wilson, 30 Ohio St. 372; Grant v. Ludlow, 8 Id., 32; Maxwell's Justice Pr., 169; Callahan v. Newell, 61 Miss. 437.)

OPINION

MAXWELL, CH. J.

The defendant in error brought an action against the plaintiff in error before a justice of the peace to recover the sum of $ 63.25. A summons was duly issued and served, which was returnable June 30, 1890, at 9 o'clock A. M. At the time to which the cause was continued the plaintiff in error failed to appear and judgment was rendered against him for the sum of $ 63.25 and costs. He then appealed the cause to the district court and in that court filed an answer to the petition of the defendant in error as follows:

"Comes now the above named defendant and for amended answer to the plaintiff's petition admits that he employed the plaintiff as a traveling salesman, and agreed to pay him the sum of twenty-five cents per box for soap sold by him, but denies that defendant agreed to pay any traveling or other expenses whatever.

"Further answering, the defendant alleges that he advanced and paid to plaintiff the sum of $ 75, which was about $ 13 more than was due plaintiff, and defendant is not indebted to plaintiff in any sum whatever.

"Further answering by way of counter-claim, defendant alleges that while plaintiff was so employed by defendant, as hereinbefore stated, the plaintiff, without defendant's knowledge or consent, falsely represented the quality of defendant's stock and promised defendant's customers to fill orders in violations of defendant's instructions, whereby defendant lost his customers in the territory traveled by plaintiff, to defendant's damage in the sum of $ 200.

"Wherefore defendant prays judgment against the plaintiff in the sum of $ 200 and costs of suit."

The defendant in error thereupon moved to strike out of the defendant's amended answer filed May 4, 1891, beginning "further answering, defendant alleges that he advanced and paid to plaintiff," and ending "wherefore defendant prays judgment against the plaintiff in the sum of $ 200 and costs of suit," and all words included between said clauses, being all after the words "or other expenses whatever," for the reason that the issues in the court below, where this cause was tried and from which it was appealed, did not include the matters set up in the said words of the amended answer, nor was the trial upon the said matter so set forth, and the issues by the amended answer are not the issues in the court below.

The motion was sustained as to the claim for damages and overruled as to payment. The defendant in error thereupon filed a reply denying payment. On the trial of the cause the jury returned a verdict in favor of the defendant in error for the sum of $ 65.48, upon which judgment was rendered.

The defendant below (plaintiff in error) brings the cause into this court, and the only question presented is the ruling of the court in striking out of the answer the counter-claim for damages.

The plaintiff in error relies upon Smith v. Borden, 22 Neb. 487 at 487-8, 35 N.W. 218, to sustain his position. In that case, however, the defendant did not set up a counter-claim or set-off,...