House v. Hanson

• Decision Date: 04 November 1955
• Docket Number: No. 36641,36641
• Citation: 245 Minn. 466,72 N.W.2d 874
• Court: Minnesota Supreme Court
• Parties: Thomas S. HOUSE, Respondent, v. Fredrikka HANSON and Darlene Hanson, Appellants.

Page 874

72 N.W.2d 874

245 Minn. 466

Thomas S. HOUSE, Respondent, v. Fredrikka HANSON and Darlene Hanson, Appellants.

No. 36641.

Supreme Court of Minnesota.

Nov. 4, 1955.

Syllabus by the Court.

1. In the light of the functional similarity between a demurrer and a motion for summary judgment in determining whether a litigant is entitled to judgment purely as a matter of law, this court holds that an order overruling the latter, when the court in its order certifies that the question of law presented by such motion is important and doubtful, may be appealed to the Supreme Court under M.S.A. § 605.09(4).

2. The word Transaction as used in Rules of Civil Procedure, Rule 13.01, does not embrace claims in tort and therefore the failure of a defendant to assert as a counterclaim any claim he has against the plaintiff does not estop him from asserting such claim in an independent action against the plaintiff.

3. The words of a court rule, like those of a statute, must be taken and construed in the sense in which they were understood and intended at the time the rule was promulgated.

Samuel Saliterman and James P. Larkin, Minneapolis, for appellants.

Schermer & Gensler and Marlon O. Haugen, Minneapolis, for respondent.

MATSON, Justice.

Appeal from an order which denies defendants' motion for summary judgment on the pleadings and which certifies that the question presented by the motion is important and doubtful.

We are concerned with the appealability of the aforesaid order under M.S.A. § 605.09(4) As the alleged equivalent of an order overruling a demurrer under our former practice and also with the question whether under Rules of Civil Procedure, Rule 13.01, a defendant in a tort action arising out of an automobile collision must interpose as a counterclaim any claims he has against the plaintiff which arise out of the same collision or be forever barred from asserting them in another suit.

Plaintiff brought this action to recover property damages sustained in a collision between his car and one owned by defendant Fredrikka Hanson and driven by defendant Darlene Hanson. In their answer defendants allege as a defense that plaintiff's action is barred because in two prior actions arising out of the same collision, brought by the defendants against the plaintiff, he had failed to counterclaim for his damages and each of such former actions, upon stipulation of the parties, had been dismissed with prejudice. Defendants have moved herein for a summary judgment in their favor upon the ground that the pleadings and the entire file show there is no genuine issue as to any material fact and that the defendants are entitled to judgment as a matter of law.

Upon the undisputed facts established by the pleadings, supporting affidavits, and the entire file, which facts are otherwise admitted by the parties, the motion for summary judgment presented only a question of law as to whether defendants' tort claim is a compulsory counterclaim under Rule 13.01 which is barred if not asserted in the original tort action. The trial court denied defendants' motion and in its order of denial treated the motion as if it were the equivalent of a demurrer under our former practice and certified, pursuant to § 605.09(4), that it presented an important and doubtful question.

1. Section 605.09(4) provides that an appeal to the Supreme Court may be taken from an order overruling a demurrer if the trial court certifies, as part of its order, that the question is important and doubtful. Although the new rules of civil procedure have expressly superseded many statutes, ¹ the above section was not one of them. Despite the fact that § 605.09(4) is still in full force and effect, Rules of Civil Procedure, Rule 7.01, provides:

'* * * Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used.'

An examination of the advisory committee's notes on Rule 7.01, Minnesota Rules of Civil Procedure, Tentative Draft, p. 41, indicates that the primary purpose of abolishing demurrers, pleas, and exceptions was essentially one to effect a change of terminology or form and not of function. ² Under Rule 7.01 these former labels have disappeared in the interest of simplification but the functions originally described by such labels remain to be exercised by answer or by a simple motion. The advisory committee's notes on Rule 7.01 read (Minnesota Rules of Civil Procedure, Tentative Draft, p. 42):

'This rule follows Federal Rule 7(c) in abolishing demurrers, pleas and exceptions for insufficiency of a pleading. Some question was raised about the words 'pleas' and 'exceptions' since some special proceedings under our statutes denominate certain appearances or pleadings as pleas or exceptions. The same question arose under the Federal rules and so the rule was noted with the following: 'All statutes which use the words 'petition,' 'bill of complaint,' 'plea,' 'demurrer,' and other such terminology are modified In form by this rule.'

'It seems desirable to eliminate such technical words used at common law and equity and thus eliminate all technical distinctions no longer in line with the better practice. Such pleadings now will be advanced by means of the complaint, answer, or By motion.' (Italics supplied.)

Aside from the advantage of simplification, no purpose would have been served by preserving demurrers, pleas, and exceptions for insufficiency of a pleading since their respective basic functions have been implemented by Rule 12.02 which provides that every defense in law or fact, to a claim for relief in any pleading, shall be asserted either (1) in the answer or responsive pleading or (2) by a motion for failure to state a claim upon which relief can be granted. ³ Rule 12.02 further provides that:

'* * * If, on a motion asserting the defense that the pleading fails to state a claim upon which relief can be granted, Matter outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.' (Italics supplied.)

Under Rule 56 a motion for summary judgment is not confined, as under our former demurrer practice, to the pleadings, and may be made with or without supporting affidavits. In 3 Youngquist & Blacik, Minnesota Rules Practice, Authors' Comments to Rule 56.02, p. 85, it has been pointed out that:

'A defending party is not required to serve his responsive pleading before moving for summary judgment. He may make the motion at any time, setting out his defenses by affidavit, and thus effect a speedy termination of the action if no genuine issue exists as to any fact or facts pertaining to a defense that would defeat the claim.

'The defendant party may likewise, before pleading, test the sufficiency of the claim by a motion for dismissal for failure to state a claim upon which relief can be granted. If matters outside the pleading are presented to the court on the motion and not excluded, the motion is to be treated as one for summary judgment testing the sufficiency of the claim in fact. Rule 12.02.'

It is apparent that a motion for summary judgment is much broader in its application than the old demurrer in that it permits a consideration of matters outside the pleadings. Rule 56.03 provides that:

'* * * The judgment sought shall be rendered forthwith If the pleadings, depositions, and admissions on file, together with the affidavits, if any, Show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' (Italics supplied.)

Despite such broader application, there is obviously a basic functional similarity between it and the old demurrer as a procedural device for entering judgment purely as a matter of law if the pleadings fail to state a claim upon which relief can be granted. In fact, the former demurrer operated as a motion for judgment on the pleadings. Branton v. McLaughlin, 109 Minn. 244, 246, 123 N.W. 808, 809.

It is true, of course, that a demurrer did not of itself raise the affirmative defense that a former judgment was Res judicata. Mitchell v. City of St. Paul, 228 Minn. 64, 36 N.W.2d 132. We are not here, however, concerned with the absolute bar which arises under the doctrine of Res judicata from a judgment entered as a result of an actual litigation of the issues between the parties. We are instead confronted with a bar created by rule, Rule 13.01, which logically is in the nature of an estoppel arising from the culpable conduct of a litigant in failing to assert a proper counterclaim. ⁴ Regardless of its nature the bar created under Rule 13.01 is an affirmative defense which could not have been asserted under demurrer. ⁵ Although our former decisions on demurrers may be helpful in guiding the determination of motions to dismiss, Rule 12.02, or motions for summary judgment, Rule 56, they must be reexamined in the light of the purposes of the new rules. ⁶ The procedural simplification established by the new rules must not be frittered away by encumbering them with unnecessary technical distinctions inherited from the older procedures. Despite the fact that unlike a demurrer a motion for a summary judgment may consider matters outside the pleadings and raise affirmative defenses, the functional purpose of determining purely a question of law upon genuinely undisputed facts is the same under both procedures. In the light of this functional similarity between a demurrer and a motion for a summary judgment in determining whether a litigant is entitled to judgment purely as a matter of law, we hold that an order overruling the latter, when the court in its order certifies that the question of law presented by such motion is important and doubtful, may be appealed to the Supreme Court under § 605.09(4). Procedural changes...