Holzbauer v. Heine
| Decision Date | 31 March 1866 |
| Citation | 37 Mo. 443 |
| Parties | PHILIP HOLZBAUER et al., Respondents, v. JOSEPH HEINE et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Land Court.
Krum & Harding, for appellants.
Wingate and Harris, for respondents.
This was an action brought in the St. Louis Land Court to enforce a mechanic's lien, for work and materials furnished, by the respondents in building certain houses in the city of St. Louis. The answer traversed the allegation of the petition, and set up as a defence payments to an amount in excess of the plaintiffs' demand. No reply was filed to the answer.
At the trial, the appellants' counsel moved the court to give judgment by default against the respondents, because no reply was filed. This motion was overruled by the court, and exceptions were taken.
After the evidence in the case was submitted to the jury, the appelants asked the court to instruct the jury, that the plaintiffs not having iled any pleading traversing or denying the account set up as a defence o the demand set forth and claimed in the petition, they should therefore consider the account as admitted; which instruction the court refused to give, and a verdict being rendered for respondent, the case was brought here by appeal.
In pleading under the code, the answer of the defendant must contain a special denial of each material allegation of the petition controverted, by the defendant, or of any knowledge or information thereof sufficient to form a belief; or a statement of any new matter constituting a defence or counter-claim. (R. C. 1851, p. 232, § 12.) The counter-claim must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action. (§ 13.) A counter-claim must contain the substance necessary to sustain an action, on behalf of the defendant against the plaintiff, if the plaintiff had not sued the defendant. It must have a tendency to show an independent cause of action, a claim existing in favor of the defendant against the plaintiff, arising either out of the contract or transaction sued on, or on some other contract. Where there is no counter-claim set up in the answer, there is no necessity of a reply; and the failure to put one in, is not an admission of anything stated in the answer. (Vasseur v. Livingston, 3 Kern. 248, affirming S. C. 4 Duer, 285.)
The term counter-claim is new to the law, and not to be found in the dictionaries, and some of the New York judges have animadverted with with great severity on the framers of the code for using a term not only new but which had no definitely established legal meaning.
But surely the term is...
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Lindsey v. Nagel
... ... Murray, 126 Mo. 526. (3) Defendants ... did not plead a counterclaim. Oldham v. Henderson, 4 ... Mo. 295; Kinney v. Miller, 25 Mo. 576; Holzbauer ... v. Heine, 37 Mo. 443; Jones v. Moore & Hickman, ... 42 Mo. 413; Turney v. Baker, 103 Mo.App. 390; Bliss ... on Code Pleadings, S. 367 and N ... ...
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Markowitz v. Markowitz
...al., 42 Mo. 413, 419, that "a cause of action which wholly defeats the demand of the plaintiff cannot be a counterclaim." And in Holzbauer v. Heine, 37 Mo. 443, it is held that an answer pleading payment is not a counterclaim, the court "The counterclaim must be one existing in favor of a d......
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Barnes v. McMullins
...him. This fact, of itself, is conclusive against the defendant's right of counter-claim, as a legal demand under the statutes. Holzbauer v. Heine, 37 Mo. 443; Spencer v. Babcock, 22 Barb. 326; Gleason v. Moen, 2 Duer 642; Davidson v. Remington, 12 How. Pr. 310; Vassear v. Livingston, 13 N. ......
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Ennis v. Hogan
...a reply when the answer contains new matter constituting a counter-claim.” (Carpenter v. Meyers, 32 Mo. 213; see generally Holzbauer v. Heine, 37 Mo. 443-4; Jones v. Moore, 42 Mo. 413; Gen. Stat. 1865, p. 686, § 26; Elliot v. Leak, 4 Mo. 540; Branstetter v. Rives, 34 Mo. 318; Nordmanser v. ......