Guaranteed Inv. Co. v. St. Croix Consol. Copper Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: KERWIN
• Citation: Guaranteed Inv. Co. v. St. Croix Consol. Copper Co., 156 Wis. 173, 145 N.W. 662 (Wis. 1914)
• Decision Date: 24 February 1914
• Parties: GUARANTEED INV. CO. v. ST. CROIX CONSOL. COPPER CO.

156 Wis. 173

145 N.W. 662

GUARANTEED INV. CO.

v.ST. CROIX CONSOL. COPPER CO.

Supreme Court of Wisconsin.

Feb. 24, 1914.

Appeal from Circuit Court, Douglas County; Frank A. Ross, Judge.

Action by the Guaranteed Investment Company against the St. Croix Consolidated Copper Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This is an action of ejectment brought to recover the real estate described in the complaint. The defendant answered to the effect that the plaintiff bases its claim on two tax deeds, and that it never was in possession of the property, and that the three-year statute of limitation had run against it. Defendant further answered by way of counterclaim, setting up that it is the owner in fee simple and in possession of the property described in the complaint, and that the plaintiff makes claim to the land adverse to the defendant's said title, and that in truth and in fact the plaintiff has no interest or estate in said premises of any name or nature and demands judgment that the plaintiff take nothing by this action, that its complaint be dismissed and the claim of the defendant to said premises be established against any claim of the plaintiff, and that the plaintiff be forever barred against having or claiming any right or title to said premises adverse to this defendant, and that plaintiff release to this defendant all claims to said lands and pay the costs of this action, and that defendant have such other relief as may be just and equitable. The plaintiff demurred to the defendant's counterclaim on the grounds: (1) That the said counterclaim does not state facts sufficient to constitute a cause of action; and (2) that the cause of action stated or attempted to be stated is not pleadable as a counterclaim in this action. The court below overruled the demurrer of the plaintiff to the defendant's counterclaim and required the plaintiff to pay $10 costs of motion as a condition of serving a reply to said counterclaim. The plaintiff having failed to reply to the counterclaim, the court ordered judgment for the defendant and against the plaintiff that the plaintiff take nothing by this action, that its complaint be dismissed, and that the claim of the defendant to the premises described in the complaint be established against any claim of the plaintiff, and that the plaintiff and all persons claiming under it since the filing of the notice of the pendency of the action be forever barred against having or claiming any right, title, or interest in or to said premises adverse to the defendant, and that the plaintiff release to the defendant all claim to said lands and pay the costs and disbursements of the action, together with $10 costs of motion. Judgment was entered accordingly, from which this appeal was taken.L. A. Doolittle, of Eau Claire, for appellant.

Ernest A. Arnold and John Brennan, both of West Superior, for respondent.

KERWIN, J. (after stating the facts as above).

[1] The first contention made by counsel for appellant is that the counterclaim was not proper, because if proven it would constitute a legal defense to the cause of action set out in the complaint; therefore the defendant cannot be permitted, by setting up such fact as a counterclaim, to change the nature of the trial so as to secure a trial before the court without a jury. Upon this point counsel relies upon the following cases: Appleton M. Co. v. Fox R. P. Co., 111 Wis. 465, 87 N. W. 453;Harley v. Harley, 140 Wis. 282, 122 N. W. 761;Page v. Kennan, 38 Wis. 320;Lawe v. Hyde, 39 Wis. 345;Pennoyer v. Allen, 51 Wis. 360, 8 N. W. 268;Brown v. Cohn, 88 Wis. 627, 60 N. W. 826. The contention of counsel for appellant under this head involves two propositions: (1) Whether the counterclaim states a good cause of action in equity; and (2) whether, if so, such cause of action is pleadable as a counterclaim. If the cause of action alleged in the counterclaim constitutes a good legal defense and the defendant has a complete and adequate remedy at law, as efficient as in equity, his counterclaim cannot be sustained.

In Appleton M. Co. v. Fox R. P. Co., supra, it was held that in ejectment neither the running of the statute of limitation nor facts constituting an estoppel in pais can properly be pleaded as a counterclaim under section 3078, Stats.; each being available as a legal defense.

In Harley v. Harley, supra, the holding was to the...