Shop v. Keeney

• Decision Date: 28 October 1914
• Docket Number: No. 8379.,8379.
• Parties: QUALITY CLOTHES SHOP v. KEENEY.
• Court: Indiana Appellate Court

57 Ind.App. 500

106 N.E. 541

QUALITY CLOTHES SHOP

v.KEENEY.

No. 8379.

Appellate Court of Indiana, Division No. 2.

Oct. 28, 1914.

Appeal from Superior Court, Elkhart County; Wm. B. Hile, Special Judge.

Action by the Quality Clothes Shop against William H. Keeney. From a judgment for defendant, plaintiff appeals. Affirmed.Wm. D. Frazer and Jas. R. Frazer, both of Warsaw, for appellant. Schuyler C. Hubbell, of South Bend, and Lloyd L. Burris and George R. Harper, both of Goshen, for appellee.

IBACH, P. J.

Appellee purchased from appellant a stock of merchandise under an agreement which reserved the title thereto in appellant until the full purchase price was paid. Appellee paid part of the consideration in cash when the stock of goods was inventoried, and a further payment when possession was obtained, but, having defaulted in his first deferred payment, appellant demanded possession of the goods, which being refused, it brought this suit in replevin to recover them.

The complaint is in the usual form for such actions accompanied by the usual affidavit. The first paragraph of answer was in general denial, and the second proceeded upon the theory that appellant should have refunded to appellee the money paid it before making default, but which it had failed to do. Appellee also filed a counterclaim in which he demanded a return of the cash paid by him before making default, less the net proceeds of the business while he was in possession and in charge of the goods. An answer in two paragraphs was filed to the counterclaim, the first a set-off averring damages for a failure to complete the contract and the second a general-denial. To the set-off appellee replied in general denial. A demurrer to appellee's second paragraph of answer was sustained, the demurrer to the counterclaim overruled, and the demurrer to the first paragraph of answer to the counterclaim overruled. The cause, being at issue, was tried by the court, resulting in a general finding and judgment for appellant on its complaint, that it was the owner of and entitled to the possession of the stock of goods in controversy, subject, however, to the payment to appellee of $1,541,75, which was found to be due appellee on his counterclaim. The finding was also against appellant on the set-off of appellee's counterclaim.

[1][2] Appellee argues that the form of the demurrer to his counterclaim is such that the court should not consider it, because it was not accompanied by a memorandum stating wherein such counterclaim is insufficient for want of facts.

We agree with this contention. By section 355, Burns 1914, a counterclaim is defined to be any matter “arising out of or connected with the cause of action *** in favor of the defendant, or which would tend to reduce the plaintiff's claim or demand for damages.” By section 358, Burns 1914, it is enacted that:

“In any case where a set-off or counterclaim has been presented which in another action would entitle the defendant to a judgment against the plaintiff, the defendant shall have the right of proceeding to the trial of his claim, without notice, although the plaintiff may have dismissed his action or failed to appear.”

It would seem, therefore, that, by the express language of the statute, a counterclaim is a complaint, and the courts have held repeatedly that a counterclaim is similar in character to a complaint, and is, in fact, in the nature of a complaint against the plaintiff. It must be complete in itself, and must be good on demurrer without reference to any other pleading in the case. State v. Fiscus (Sup.) 105 N. E. 230;Stoner v. Swift, 164 Ind. 652, 74 N. E. 248;Conaway v. Carpenter, 58 Ind. 477;Wabash Valley Protective Union v. James, 8 Ind. App. 449, 451, 452, 35 N. E. 919.

We are satisfied that the act of March 4, 1911 (Laws 1911, c. 157, § 2), requiring a memorandum to accompany a demurrer to a complaint whenever the complaint is insufficient for want of facts, applies to counterclaims as well as to the original complaint filed in a case.

[3][4] But if it should be conceded that the pleading in this case should be construed to be an affirmative answer, as is insisted upon by appellant, we are of the opinion that the same rules must be applied and that the demurrer to such answer, to be sufficient, must have been accompanied by a memorandum stating wherein such affirmative answer was insufficient. Before the act of March 4, 1911, was enacted, such memorandum as is now required to be filed with a demurrer was not necessary. Before the passage of this act there existed and still exists a statute which provides:

“Where the facts stated in any paragraph of the answer are not sufficient to constitute a cause of defense, the plaintiff may demur to it under the rules prescribed for demurring to a complaint.” Section 351, Burns 1908.

Such being the rule under the old act, when it was amended so as to require the demurrer to a complaint for want of sufficient facts to be accompanied by a memorandum showing wherein the facts were insufficient, in all actions begun after the act was amended, it would seem that the demurrer to an answer for want of sufficient facts must be in the same form as a demurrer to a complaint, and must be accompanied by a memorandum, like the demurrer to a complaint. The rule is that, where an amended section of a general act is under consideration, as to all matters occurring thereafter, such amended act is to be taken as if it had been a part of the original act, and also, where a number of statutes, whenever passed, relate to the same general subject-matter, they are in pari materia, and are to be construed together. Parks v. State, 159 Ind. 215, 216, 64 N. E. 862, 59 L. R. A. 190;Russell v. State, 161 Ind. 481, 68 N. E. 1019;Western Con. Co. v. Board, 166 Ind. 162, 76 N. E. 986. Also, when a statute which adopts a portion of the law already declared makes no reference to any particular statute or part of statute by its title or otherwise, but refers to the law generally which governs a particular subject, the reference in such a case includes not only the law in force at the date of the adopting act, but also all subsequent laws upon the particular subject referred to. State ex rel. v. Leich, 166 Ind. 680, 682, 78 N. E. 189, 9 Ann. Cas. 302, and cases cited.

We have therefore concluded that the demurrer to appellee's cross-complaint was not sufficient in form, and should not have been considered by the court. But appellant is not in any position to question the action of the court in overruling his demurrer; since, for reasons which will appear in the later...