Township of Noble v. Aasen
| Decision Date | 15 October 1898 |
| Citation | 76 N.W. 990,8 N.D. 77 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action in equity by the Township of Noble against Ole T. Aasen for an injunction and damages. From a judgment for plaintiff defendant appeals.
Reversed with directions.
District Court of Cass County set aside. Reversed.
H Steenerson and Hildreth & Ingwaldson, for appellant.
Morrill & Engerud, for respondent.
The record in this case is in an anomalous condition. The plaintiff township brought an action in equity asking a decree permanently enjoining defendant from interfering in any manner with a certain culvert in a certain highway in said township, and also asking damages for a previous destruction of such culvert. The defendant answered both by general denial and by new matter pleaded as a counter claim. To this counterclaim plaintiff replied by general denial. The case being thus at issue was brought on for trial. At the opening of the trial, plaintiff's attorney moved to strike out the counterclaim for the reason "that the facts set forth in the alleged counterclaim are not sufficient to constitute any counterclaim against the township." This motion was granted, and an exception saved. The trial then proceeded upon the remaining issue, and resulted in a decree as prayed for, with damages. From the final judgment the defendant brings this appeal. The only error assigned is the ruling on the motion to strike. The abstract contains only the pleadings, the motion, the ruling thereon and exceptions, the final judgment, and notice of appeal. In the notice of appeal no mention is made of the order striking out the counterclaim.
It is urged that the order cannot be reviewed on an appeal from the final judgment. We reach the opposite conclusion. We need not decide in this case whether or not such order was an appealable order, under section 5626, Rev. Codes. It was an intermediate order, which involved the merits, and necessarily affected the judgment; and as such it is reviewable on appeal from the final judgment, under section 5627. The fact that it might have been the subject of an independent appeal before final judgment does not prevent its review upon appeal from the judgment. Our appeal law is substantially like that of Wisconsin. And see Machine Co. v. Gurnee, 38 Wis. 533; Machine Co. v. Heller, 41 Wis. 657; Morris v. Niles, 67 Wis. 341, 30 N.W. 353; also, Granger v. Roll (S. D.) 6 S.D. 611, 62 N.W. 970; Buchanan v. Insurance Co. 96 Ind. 510. But, as this case was tried under section 5630, Rev. Codes, chapter 5, Laws 1897, respondent contends that the error assigned cannot be reviewed, under the ruling of this Court in Nichols & Shepard Co. v. Stangler, 7 N.D. 102, 72 N.W. 1089, for the reason that no evidence is preserved in the record, and none was offered under the counterclaim, and, as announced in that case, this Court, in cases tried under said section, sits for trial de novo, and not for the correction of errors. But the question here presented is radically different from that presented in the case cited. True it is that in cases tried under said section this Court tries the issue de novo, whether it be an issue of law or an issue of fact. Evidently, an issue of fact, cannot be retired by this Court, in the absence of all the testimony offered upon that issue. But the wording of the statute declares: "In all actions tried by the District Court without a jury, in which an issue of fact has been joined, all the evidence offered on the trial shall be received." It is only when an issue of fact has been joined that the introduction of testimony is contemplated. If a complaint equitable in its nature, and tendering an issue of fact that must be tried by the Court, if tried at all, should be held bad on demurrer, and final judgment dismissing the action rendered against the plaintiff, counsel would scarcely contend that plaintiff could not have such ruling reviewed unless he offered all his testimony to support his allegations of fact, and had it preserved in a stated case, and presented it to this Court. Such a course would be absurd, because there never was an issue of fact in the case, and never was any trial of any issue of fact, and a trial de novo of an issue in this Court can only follow a trial of the same issue in the District Court. Our review in the supposed case would, of necessity, be limited to the issue of law tried by the District Court. The question raised on the counterclaim in the case at bar is, in its legal effect, identical with the supposed case. When, on respondent's motion, the Court struck the counterclaim from the case, it was out for all purposes of the trial of any issue of fact. No evidence could be offered under it, because it no longer existed as a pleading in the case. The trial of the issue of law had eliminated it. But the circumstance that there is no evidence here to support the issue of fact that it tendered when in the case in no manner prevents a retrial in this Court of the issue of law that the District Court did try and determine. Should our determination of that issue be different from that of the District Court, then it would be our duty to remand the case for a trial of the fact issues tendered by the counterclaim, and which never have been tried.
We come now to the consideration of the ruling upon the motion. The motion to strike was ill-timed, and ought not to have been considered. Respondent had already served a reply. He was in the position of attacking a pleading as to which he had already pleaded to the facts. The case presents no reason why the technical rules of pleading should not be enforced. The basis of the motion, as stated by counsel, was "that the facts set forth in the alleged counterclaim are not sufficient to constitute a counterclaim against the township. " In so far as the motion raised the question that the facts stated did not constitute a cause of action in favor of appellant and against respondent that could be enforced under any circumstances, it was proper enough. That point is not foreclosed by pleading to the facts, and the exact manner in which it is raised may not be material. But, in so far as it attempted to raise the point that the facts did not constitute a counterclaim that could be enforced against the township in this particular case, it was abortive, for the reason that such point was waived by pleading to the facts, and no leave was given or asked to withdraw the reply. See Bank v. Laughlin, 4 N.D. 391, 61 N.W. 473, and cases cited on page 401, 4 N. D., and page 478, 61 N. W. Rep.
The investigation of one further inquiry will decide this case Do the facts set forth in the counterclaim constitute a cause of action in favor of appellant and against respondent? The allegations are that during the year 1893 the respondent, for the purpose of draining a certain highway,--being the same highway whereon the culvert hereinbefore mentioned had been constructed,--wrongfully and unlawfully entered upon appellant's land, which as the pleadings show, adjoined said highway, and constructed various ditches leading from said highway, over and across plaintiff's land;...
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