Stauffer v. Campbell
| Decision Date | 19 October 1911 |
| Citation | 118 P. 391,30 Okla. 76,1911 OK 339 |
| Parties | STAUFFER et al. v. CAMPBELL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Under section 5635, Compiled Laws of Oklahoma 1909, a defendant may plead and prove a set-off or counterclaim of a proper nature in defense of the liability sought to be enforced by the plaintiff; and it is not necessary that the same shall exist as between all parties plaintiff and defendant in such action.
A counterclaim pleaded as a defense, or a set-off pleaded for the purpose of liquidating the whole or a part of plaintiff's claim, is not barred by the statutes of limitations, until the claim or the demand of the plaintiff is barred.
It is error to sustain a motion for judgment on the pleadings where there is on file, undisposed of, an answer of one of the defendants, setting forth that plaintiff is indebted to him on account in a sum in excess of plaintiff's demand.
Commissioners' Opinion. Division No. 1. Error from Garfield County Court James B. Cullison, Judge.
Action by John Campbell against Jacob Stauffer and others. From a judgment for plaintiff, defendants bring error. Reversed and remanded.
A. J Jones, for plaintiffs in error.
Guy S Manatt and J. M. Dodson, for defendant in error.
SHARP C. (after stating the facts as above).
The sole question to be determined in this case is, Did the court err in rendering judgment on the pleadings in favor of defendant in error and against plaintiffs in error?
Defendant in error, in his brief, contends that the set-off attempted to be pleaded by plaintiffs in error was improperly interposed as a defense to the bond, for two reasons: (1) There was a lack of mutuality between the parties. (2) Because the alleged claim of Jacob Stauffer, intended as a set-off or counterclaim, was indefinite, uncertain, unverified, and barred by the statute of limitations.
In support of these two propositions, counsel cites Murphy v. Colton, 4 Okl. 181, 44 P. 208, Richardson et al. v. Penny, 10 Okl. 32, 61 P. 584, and McClure v. Johnson, 10 Okl. 663, 668, 65 P. 103. In Murphy v. Colton, supra, in the syllabus, it is said: "Under the 1890 Code of Procedure in this territory, mutuality was essential to a set-off, and one of two defendants sued jointly could not set off against plaintiff's claim an account due to one, and not to both, defendants." In Richardson et al. v. Penny, supra, it was held: "The cause of action sought to be pleaded as a set-off must exist in favor of all the defendants against the plaintiff." In McClure v. Johnson, supra, the court held that the three-year statute of limitations upon a contract expressed or implied, not in writing, applied to a set-off or counterclaim interposed as a defense, and reversed the judgment of the trial court, with instructions to sustain the demurrer, filed by the plaintiff below to defendant's answer, setting up the three-year statute of limitations.
In this case, as in Loeb v. Loeb et al., 24 Okl. 384, 103 P. 570, counsel for both parties evidently overlooked the statute passed by the territorial Legislature in 1905, found in section 3, art. 7, c. 28, p. 328, of the Session Acts of 1905 (section 5635, Compiled Laws of Oklahoma 1909), which is as follows: This statute, with the construction placed thereon in the foregoing case, completely disposes of the question of lack of mutuality. As was said by Dunn, J., in referring to the statute quoted: "The foregoing statute is in keeping with the general trend of judicial expression on this subject in the different states of the Union, even where there is no such statute, and in our judgment its passage was prompted by the holding of the Supreme Court in the cases upon which the plaintiff relies."
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