Lace v. Fixen

• Citation: 38 N.W. 762,39 Minn. 46
• Parties: LACE v FIXEN ET AL.
• Decision Date: 26 June 1888
• Court: Supreme Court of Minnesota (US)

39 Minn. 46

38 N.W. 762

LACEvFIXEN ET AL.

Supreme Court of Minnesota.

June 26, 1888.

(Syllabus by the Court.)

The proper way to raise the question whether a cause of action is the subject of counter-claim is by demurrer. By failing to demur, a plaintiff waives all objection to the answer as a counter-claim. Following Walker v. Johnson, 28 Minn. 147,9 N. W. Rep. 632.

Where part of the issues in an action were triable by a jury and part by the court, a demand for a jury trial of the whole action was properly denied. Following Greenleaf v. Egan, 30 Minn. 316,15 N. W. Rep. 254.

Appeal from district court, Hennepin county; YOUNG, Judge.

Thomas Canty, for appellant.

Arctander & Arctander, (James O. Pierce, of counsel,) for respondents.

MITCHELL, J.

Bad pleading and irregular practice have put this case in a very anomalous condition. A suit brought to recover money of the plaintiff, had and received by Fixen for the use of the plaintiff, has, during its progress, been transformed into an action by Fixen and Kelley against plaintiff for a settlement and accounting of a partnership formerly existing between the three. Plaintiff's complaint was the ordinary one, to recover money had and received by Fixen for the use of plaintiff. Fixen answered-First, denying the allegations of the complaint; and, secondly, alleging that the money which plaintiff sought to recover was part of the assets of a partnership formerly existing between himself, plaintiff, and Kelley, and which had never been adjusted or settled. Had the pleadings stopped here, as they ought, the case would have presented simply a legal issue, in an action for the recovery of money only, triable by a jury; for no matter how the partnership accounts might have stood, as between the partners, if the allegations of the answer were true, plaintiff could not have recovered. But Fixen's answer proceeded and alleged, by way of counter-claim, the partnership between himself, plaintiff, and Kelley; its dissolution; that there had never been any settlement or adjustment of its affairs; that plaintiff had wrongfully appropriated some of the firm assets to his individual use, and refused to account for the same; that Kelley was a necessary party; and asking that he be joined as such, and that there might be a full and final accounting and settlement of the partnership business. The court thereupon, upon its own motion, and against plaintiff's objection, ordered that Kelley be made a party defendant. Kelley then appeared, and interposed an answer substantially the same as Fixen's. Plaintiff replied to both answers, still protesting that Kelley was not a proper party to the suit, and that the matter of an accounting and adjusting the affairs of the partnership was not a proper counter-claim, but joining issue on the facts by denying the allegations of the answers and alleging that the business of the partnership had already been fully and finally settled. When the cause came on for trial, plaintiff “demanded that said action be tried by a jury,” which demand the court denied, and proceeded to try it as a court case. During the progress of the trial, and after considerable of the evidence had been introduced, the court, on the motion or suggestion of the plaintiff, ordered that at that hearing evidence should only be introduced as to the questions whether there had been a final...