259 P. 614 | N.M. | 1927
[1] 34CJ p. 716 n. 33. [2] 34CJ p. 864 n. 15. [3] 34CJ p. 663 n. 18. *479
[1] The counterclaim is an invention of the Code. Among other matters which may be the subject-matter of a counterclaim, it specifies:
"In an action arising on contract, any other cause of action arising also on contract and existing at the commencement of the action." Code 1915, § 4116.
A judgment is a contract within the meaning of this provision. Rose v. N.W.F. M. Ins. Co. (C.C.) 71 F. 649; Way v. Colyer.
"The test by which to determine whether a particular demand arises on contract, within the meaning of the statute of counterclaims, is this: If the demand could have been redressed at common law by any of the forms of action which might be resorted to to recover damages for breaches of contract, then it is the proper subject of a counterclaim, under the provision of the statute we are considering; otherwise not. If this defendant could have maintained at common law against Kreiger, for the breach of contract in question, an action of covenant, debt, or assumpsit, then the counterclaim which is here set up must be sustained. But if he could not have enforced this liability of Kreiger without resorting to one of the forms of action used at common law for the redress of injuries sounding in tort or to a bill in equity, then the demand is not the subject of the set-off." Board of President and Directors of St. Louis Public Schools v. Estate of Broadway Savings Bank,
An action upon a judgment was at common law an action of debt. Black on Judgments (2d Ed.) § 958.
[2] Appellee invokes the rule that a judgment is res adjudicata as to defenses which were, or might have been, interposed or litigated. But the counterclaim of *480
the Code is not a defense within the meaning of that rule. It is an independent cause of action which the defendant may, but need not, interpose. Bliss on Code Pleading (3d Ed.) § 368; Freeman on Judgments (5th Ed.) §§ 675, 774, 786, 1075; Fiske v. Steele, supra; Weaver v. Brown,
[3] Appellee contends that his suit, although founded on a live judgment, on which he could have had execution for the asking (Code 1915, §§ 3085, 3086), is one to revive a judgment; and that in such a case no defenses are available except lack of jurisdiction, payment and satisfaction. It is probably true that no other defenses could be pleaded to the writ of scire facias — the former mode of reviving a dormant judgment. The reason was that such writ, although it might be pleaded to, was not considered an action, but rather a proceeding in the original cause. The Code has changed this. The proceeding to revive a judgment is "a new and independent action." Browne and Manzanares v. Chavez,
The judgment must therefore be reversed and the cause remanded, with direction to the district court to overrule the demurrer to the counterclaim, and after the joinder of issue thereon to proceed with the cause.
It is so ordered.
PARKER, C.J., and BICKLEY, J., concur. *481