Taylor v. Bartholomew
| Citation | 56 P. 325,6 Idaho 500 |
| Parties | TAYLOR v. BARTHOLOMEW |
| Decision Date | 23 February 1899 |
| Court | United States State Supreme Court of Idaho |
PLEADINGS-NONSUIT-CROSS-COMPLAINT.-In an action by the plaintiffs against numerous defendants to settle the rights of the parties to the waters of a certain stream, various defendants having, in addition to their answers to the complaint of plaintiffs, filed cross-complaints asking affirmative relief against both the plaintiffs and certain of their codefendants the plaintiffs having been nonsuited, the court, on motion of certain of the defendants, dismissed the cross-complaints of the other defendants. Held, error. The cross complainants were entitled to be heard upon their cross-complaints in the action then pending.
(Syllabus by the court.)
APPEAL from District Court, Cassia County.
Reversed and remanded. Costs to appellants.
Moyle Zane & Costigan, for Appellants.
Whenever the defendant seeks affirmative relief against any party relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross-complaint. The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to the original complaint. (Idaho Rev. Stats. 1887, sec. 4188; Van Bibber v Hilton, 84 Cal. 585, 24 P. 308, 598.) No objection can be made to the cross-complaints that new parties are named therein as parties to be brought in, for relief may be had against new parties by cross-complaint even when the statute is silent as to granting relief against persons not parties to the original suit. (Winter v. McMillan, 87 Cal. 256, 22 Am. St. Rep. 243, 25 P. 407; Chalmers v. Trent, 11 Utah 88, 39 P. 488.) Moreover, a cross-bill is so far independent of the original bill that where the cross-bill sets up additional facts relating to the subject matter of the suit, but not alleged in the original bill, and asks affirmative relief upon grounds justifying equitable interference, a dismissal of the original bill does not dispose of the cross-bill, but that remains for disposition just as if it had been filed as an original bill. Cross-complaints under the code are like cross-bills, with two important exceptions, viz.: 1. A cross-bill would of course lie only in equity cases, while a cross-complaint is available in law cases as well as in equity; and 2. While a cross-bill may be made up wholly of defensive matter, a cross-complaint is by the very words of the statute proper only where affirmative relief is sought by the defendant. (Willman v. Friedman, 4 Idaho 209, 38 P. 937.) One restriction is imposed, viz., the plaintiff cannot dismiss the action, nor submit voluntarily to a nonsuit, without the consent of the cross-complainant. The plaintiff can, however, do either of these things with the consent of the defendant, and a voluntary dismissal of his original complaint, by plaintiff, or a voluntary nonsuit by him, with the consent of the cross-complainant. leaves the issues under the cross-complaint in court for adjudication. The cross-complaint remains for disposition as though it were an original complaint, for "it is the policy of the law, as it is essential to the cause of justice, that all matters of difference between the parties should be settled in one controversy."
Hawley & Puckett and K. I. Perky, for Respondent.
The first position taken by counsel that "the cross-complaints in this case are proper cross-complaint," we do not concede. We deny that a cross-complaint in this form of action is a proper pleading, and insist, even if it is proper, still it is not necessary. Matters which are proper as a defense should be set up by answer, and not by way of cross-complaint. (Shain v. Belvin, 79 Cal. 262, 21 P. 747; Mills v. Fletcher, 100 Cal. 142, 34 P. 637; Wilson v. Madison, 55 Cal. 5; Miller v. Luco, 80 Cal. 257, 22 P. 195; Hills v. Sherwood, 48 Cal. 386; Doyle v. Franklin, 40 Cal. 110.) Matters which are proper as a defense will not be turned into a cross-complaint, merely by a prayer for affirmative relief. (Doyle v. Franklin, 40 Cal. 110; Brannan v. Paty, 58 Cal. 330.) Where the original bill is dismissed as a matter not properly in court, the cross-bill is also dismissed. (Lowenstein v. Hooker, 71 Miss. 102, 14 So. 531.)
This action was brought by the plaintiffs against some twenty-five defendants, for the purpose of adjusting and establishing the rights of the various parties to the waters of Raft river and its tributaries. The complaint sets up the claim of the plaintiffs to a certain amount of the waters of Raft river by virtue of appropriation and user since the year 1875; sets forth the description of the lands of the plaintiffs for the irrigation of which said water was appropriated and has been used since 1875; and avers the necessity of such water for the cultivation of said lands. The complaint avers that each of the defendants is located on lands situated above the lands of the plaintiffs on said Raft river, and avers that defendants have interfered with plaintiffs' right to said waters by obstructing the flow thereof by the erecting of dams and ditches on said stream, and diverting the waters thereof, and have thereby deprived the plaintiffs of the use and enjoyment of said waters to which they are entitled as aforesaid; avers that the defendants, and each of them, claim some right or interest in or to the use of the waters of said Raft river; but avers that such rights of defendants, if any they have, to the use of the waters of said river, are subsequent in time, and inferior in right and title, to the rights of plaintiffs to the use of the waters of said river. The complaint sets forth the corporate and copartnership character of certain of the defendants; demands judgment and decree establishing the priority of the rights of plaintiffs to said water over those of defendants; prays for injunction against defendants pendente lite, and that, upon hearing, the same be made perpetual, and for general relief. To the complaint of plaintiffs, the defendants who are appellants here filed their answer, denying specifically the allegations of the plaintiffs' complaint. Said defendants also allege a misjoinder of parties, in that certain other parties have or claim to have rights and interests in and to the use of the waters of the tributaries of said Raft river (it is evident that appellants mean a nonjoinder); and they aver that it is essential to the proper and complete adjustment of the questions presented in this case that said parties should be made parties to this action, and pray that they may be so joined. Said appealing defendants also file a cross-complaint wherein they set forth severally the rights of each to the use of the waters of said Raft river, and that the other defendants claim some interest in the waters of Raft river and its tributaries adverse to that of said cross-complainants, and that the plaintiffs also...
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Taylor v. McCormick
...held that the cross-complainants should have been heard upon their cross-complaints against the other defendants. (See Taylor v. Bartholomew, 6 Idaho 500, 56 P. 325.) cause was remanded and tried, and resulted in a judgment of dismissal, and this appeal is from that judgment. Counsel for re......