Venable v. Dutch

• Decision Date: 05 November 1887
• Citation: 15 P. 520,37 Kan. 515
• Parties: GILBERT M. VENABLE v. LOUIS DUTCH
• Court: Kansas Supreme Court

15 P. 520

37 Kan. 515

GILBERT M. VENABLE v. LOUIS DUTCH

Supreme Court of Kansas

November 5, 1887

Error from Wilson District Court.

THE opinion states the case.

Judgment affirmed.

A. J Utley, for plaintiff in error.

S. S Kirkpatrick, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.:

This action was tried in the Wilson district court, at the May term, 1885. Plaintiff in error, plaintiff below, filed a petition for ejectment in the ordinary form. The defendant answered by a general denial, and also claimed title under a tax deed. The first trial was had, and a second trial was granted under the statute. At the time of the second trial, plaintiff moved to strike out that part of defendant's answer setting up a title in himself by a tax deed, which motion was overruled by the court. Plaintiff then demurred to that portion of defendant's answer, which was overruled; whereupon he asked leave to dismiss his action without prejudice to a future action, which was allowed, but the court permitted the defendant to retain his answer for trial. Plaintiff then filed a general denial in reply, when the defendant asked leave to amend his answer by alleging that he had quieted his title to the land in question, by a judgment duly obtained by publication in the district court against the plaintiff. To this new cause of action plaintiff demurred, which demurrer was by the court overruled. A jury being waived, the issue was tried by the court, which rendered judgment for the defendant. This judgment plaintiff brings here for review.

Plaintiff assigns for error, first, that the second portion of defendant's answer should have been stricken out, for the reason that everything which might have been proven under it might have been proven under the general denial. Under that portion of the answer which plaintiff calls a cross-bill, the defendant asks for affirmative relief. Our statute provides that a defendant may set up in his answer, in addition to a general denial, any new matter setting forth a defense, a counterclaim, set-off, or right of relief concerning the subject of the action. But the plaintiff says that when he dismissed his cause of action, that the defendant's cause of action should have followed it, because the second part of defendant's claim was not a counterclaim, and cites § 398 of the civil code to show that the defendant has a right to proceed to the trial of his cause only when he has filed a set-off or counterclaim, after the plaintiff has dismissed his cause of action. Plaintiff contends that the second portion of defendant's answer is not, under our statutes, a counterclaim. The ordinary meaning of counterclaim is a demand of something which of right belongs to the defendant in opposition to the right of the plaintiff. It is also defined as a claim, which, if established, will defeat or in some way qualify a judgment to which plaintiff is otherwise entitled; it is the claim of a defendant to recover from a plaintiff by setting up and establishing any cross-demand which may exist in his favor as against plaintiff. But the plaintiff, in an argument ingenious rather than sound, claims that there is a limited meaning of the word counterclaim given by our statute. By § 95 of the civil code a counterclaim must be one existing in favor of a defendant and against a plaintiff arising out of the contract or transaction set forth in the petition as the foundation of plaintiff's claim, or connected with the subject of the action.

The subject of plaintiff's action is his title to the land, and the adverse possession of defendant. The defendant claims that he is in possession lawfully as the owner thereof, by virtue of a judgment quieting his title against plaintiff. We think that the claim in the answer is connected with the subject of plaintiff's action. (Jarvis v. Peck, 19 Wis. 74; Eastman v. Linn, 20 Minn. 433.)

In actions similar to the one we are now considering, where a plaintiff brought an action against a defendant in ejectment, and claimed to be the owner in fee simple, and that defendant wrongfully kept him out of possession, and such defendant alleged ownership in himself, and stated that the plaintiff made some claim to the land, and asked that his title be quieted against him, this court has repeatedly denominated such answer a counterclaim. (Allen v. Douglass, 29 Kan. 412; Sale v. Bugher, 24 id. 432.)

After plaintiff dismissed his cause of action, the defendant under his answer seeking to quiet his title is virtually plaintiff in all things save in name; the facts alleged in his answer must be sufficient to constitute a cause of action, and the relief to which he is entitled must be properly demanded; the burden of proof is upon him, and he must establish his cause of action by a preponderance of testimony before he is entitled to a judgment in his favor; being in the place of a plaintiff, and subject to his burdens, he also possesses his rights, and therefore it is within the discretion of the court to allow him to amend his pleading by adding another count. In this case the court properly allowed such an amendment. (Allen v. Douglass, Sale v. Bugher, supra; Pomeroy's Remedies, § 738.)

By far the gravest question...