Dodd v. Dodd

• Decision Date: 23 December 1886
• Citation: 13 P. 509,14 Or. 338
• Parties: DODD v. DODD.
• Court: Oregon Supreme Court

13 P. 509

14 Or. 338

DODD v. DODD.

Supreme Court of Oregon

December 23, 1886

Weatherford & Blackburn, for appellant.

Flinn &amp Chamberlain, for respondent.

LORD C.J.

The plaintiff brought a suit for a divorce. The defendant answered, denying the charges alleged, and setting up, by way of counter-claim, certain alleged charges against the plaintiff, for which he demanded affirmative relief. The plaintiff replied, denying the alleged counter-claim. Issue being thus joined, the evidence was taken, and a trial had which resulted in a decree dismissing the complaint of the plaintiff, and also the counter-claim or cross-bill of the defendant. To the dismissal of the cross-bill of the defendant, which asks for affirmative relief, viz., a divorce, this appeal is taken. The only legal question presented is whether an answer in the nature of a cross-bill asking for affirmative relief, is allowable under the Code. Unless it is, the defendant has no ground for appeal. The right is claimed to exist by force of section 389 of the Code, which provides that "the counter-claim of the defendant shall be one upon which a suit might be maintained by the defendant against the plaintiff in the suit; and in addition to the cases specified in the subdivision of section 72, it is sufficient if it be connected with the subject of the suit." This provision, as a whole, is quite similar to section 150 of the New York Code. In B------- v. B-------, 11 N.Y.Leg.Obs. 350, it was held, after a full and careful consideration, that such an answer was a counter-claim within the provisions of section 150 of New York Code, and this was approved in an anonymous case, 17 Abb.Pr. 48, as correct in principle, and satisfactory in reasoning. Subsequently, however the doctrine of B_______ v. B_______, supra, was disapproved by a majority of the court, in H------- v. H-------, 40 Barb. 10. But it would seem now that the practice is settled in that state to allow an answer in the nature of a cross-bill for the purpose of obtaining affirmative relief. In Campbell v. Campbell, 12 Hun, 636, it is said "There is no good reason why this right should not exist, and many why it should. The proceedings in this class of cases are sui generis; and when the pleadings present issues of this kind, and in the form presented in this case, such party is an actor, and cannot be deprived, without his or her consent, of the right to pursue affirmative relief." See, also, Bleck v. Bleck, 27 Hun, 296; 2 Abb. Forms, 169, form 1089. Mr. Bishop says: "The practice of bringing in a cross-bill by the defendant against the plaintiff, to aid the defense, and likewise obtain affirmative relief, may be resorted to in these divorce cases,...