Hanson v. Byrnes

• Decision Date: 20 October 1905
• Docket Number: 14,489 - (155)
• Citation: 104 N.W. 762,96 Minn. 50
• Parties: HANS HANSON v. JOHN T. BYRNES
• Court: Minnesota Supreme Court

104 N.W. 762

96 Minn. 50

HANS HANSON v. JOHN T. BYRNES

Nos. 14,489 - (155)

Supreme Court of Minnesota

October 20, 1905

Appeal by plaintiff from an order of the district court for Meeker county, Qvale, J., overruling a demurrer to counterclaims set up in defendant's answer to the complaint. Reversed.

SYLLABUS

Action ex Delicto.

The complaint herein states a cause of action ex delicto.

Counterclaim

A cause of action cannot be pleaded as a counterclaim to an action ex delicto, unless it arises out of the transaction set forth in the complaint or is connected with the subject-matter of the action.

Counterclaim.

The alleged causes of action pleaded in the answer herein do not constitute proper counterclaims.

Alva R Hunt, for appellant.

H. S McMonagle, for respondent.

OPINION

START, C.J.

The complaint purports to allege a cause of action for damages sustained by reason of the deceit and the fraudulent representations of the defendant as an attorney at law. The answer denied each allegation of the complaint, except the formal allegation that the defendant was an attorney at law and performed legal services for the plaintiff. It then alleged three separate counterclaims as follows: First, that between January 1, 1898, and January 1, 1903, the defendant at the request of the plaintiff performed services as an attorney at law for him, for which the plaintiff agreed to pay the defendant $1,900; second, that between January 1, 1897, and January 1, 1905, the defendant at the request of the plaintiff paid for him $236, which he promised to repay to the defendant; third, that between January 1, 1897, and January 1, 1903, the defendant at the request of the plaintiff loaned to him $214.67, which he promised to repay to the defendant. The plaintiff demurred to each of these alleged counterclaims on the ground that it did not constitute a counterclaim. The trial court overruled a demurrer, and the plaintiff appealed.

1. The defendant here seeks to justify the order overruling the demurrer on the ground that a demurrer reaches the first defective pleading and that the complaint does not allege facts constituting a cause of action. Upon a demurrer to an answer the sufficiency of the complaint as to matters of substance may be considered, and judgment given against the party whose pleading was first defective. First Nat. Bank of St. Paul v. How, 28 Minn. 150, 9 N.W. 626; Bausman v. Woodman, 33 Minn. 512, 24 N.W. 198. Whether this rule has any application to a case where by the answer the complaint has become the subject of an issue of fact, and the demurrer is to a counterclaim which alleges a separate and independent cause of action, is an open question in this state. See 1 Chitty, Pl. 669; Anderson v. Thompson, 88 Ind. 405, and Lawe v. Hyde, 39 Wis. 345.

We assume, for the purposes of a decision of this case only that such demurrer searches the entire record and fastens upon the first defective pleading. Such a demurrer, however, can reach only prior pleadings which are defective in substance, and not those which are only technically so. Stratton v. Allen, 7 Minn. 409 (502). It follows that the allegations of the complaint herein are not to be...