delivered the opinion of the court.
“A judgment of nonsuit may be given against the plaintiff as provided in this chapter:
“1. On motion of the plaintiff, at any time before trial, unless a counterclaim has been pleaded as a defense.”
Precedents have firmly established the rule that in an action at law the plaintiff possesses the absolute right to a voluntary nonsuit at any time before trial “unless a counterclaim has been pleaded as a defense” (Currie v. Southern Pacific Co., 23 Or. 400, 402 (31 Pac. 964); Hume v. Woodruff, 26 Or. 373, 375 (38 Pac. 191); Ferguson v. Ingle, 38 Or. 43, 45 (62 Pac. 760); Hutchings v. Royal Bakery, 60 Or. 48, 50 (118 Pac. 185); and therefore the court was powerless to deny the motion if the answer did not plead a counterclaim.
“The answer of the defendant shall contain: 1. A general or specific denial of each material allegation of the complaint controverted by the defendant. * * 2. A statement of any new matter constituting a defense or counterclaim.”
Section 74, L. O. L., originally read thus:
“The counterclaim mentioned in Section 73 must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action:
“1. A cause of action arising out of the contract, or transaction set forth in the complaint, as the foundation of the plaintiff’s claim.
“2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.
“The defendant may set forth by answer as many defenses and counterclaims as he may have. They shall each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that they may be intelligibly distinguished.”
This section was amended by Chapter 173, Laws of 1913, by adding the words:
“Provided, that the defendant shall not be required to admit in his answer any liability or indebtedness to the plaintiff in order to be permitted to plead a counterclaim.”
And a second amendment was made by Chapter 8, Laws of 1915, enabling a defendant to set forth by answer as many counterclaims as he may have, “including pleas in abatement. ’ ’ However, all that part of Section 74 which is material to this discussion has remained unchanged from the time of its adoption in 1862. We must remember, too, that Section 74 does
“We have no statute authorizing an equitable defense to be interposed to an action at law, and, though in this state a court of equity and a court of law are presided over by the same judge, they are essentially different forums”: Chauncey v. Wollenberg, 59 Or. 214, 224 (115 Pac. 419); Burrage v. Bonanza G. & Q. M. Co., 12 Or. 169, 173 (6 Pac. 766).
We must therefore eliminate from our consideration all those reported decisions which are predicated upon statutes containing the words “or connected with the subject of the action,” and also all juridical expressions found in jurisdictions where both legal and equitable rights may be asserted and established in a single proceeding which is usually termed an action.
Having noted that a suit in equity as distinguished from an action at law must be resorted to for the enforcement and establishment of an equitable right, and having observed that our statute which provides for counterclaims in an action at law is narrower than
“Something—that combination of acts and events, circumstances, and defaults—which, viewed in one aspect, results in the plaintiff’s right of action, and viewed in another aspect, results in the defendant’s right of action. As these two opposing rights cannot be exactly the same, it follows that there may be, and generally must be, acts, facts, events, and defaults in the transaction as a whole which do not enter into each cause of action, but are confined to one of them alone.”
In Loewenberg v. Rosenthal, 18 Or. 178, 184 (22 Pac. 601), the court says subdivision 1, Section 74, “would imply that it arose out of some agreement or business affair between the parties.” An extended discussion
“As the word is employed in American Codes of pleading and in our own Practice Act, a ‘transaction’ is something which has taken place whereby a cause of action has arisen. It must therefore consist of an act or agreement or several acts or agreements having some connection with each other, in which more than one person is concerned, and by which the legal relations of such persons between themselves are altered. * * It (Practice Book) has taken the word ‘transaction,’ not out of any legal vocabulary of technical terms, but from the common speech of men. So far as we are aware, it has never been the subject of any. exact judicial definition. It is therefore to be construed as men commonly understand it. * * ”
See, also, Bliss, Code Pleading (3 ed.), § 372; 34 Cyc. 686; 38 Cyc. 937; Burrage v. Bonanza G. & Q. M. Co., 12 Or. 169, 174 (6 Pac. 766).
A claim is available as a counterclaim if it arises out of a cause of action if that cause of action in turn arises out of the “transaction” set forth by the plaintiff as the “foundation” of his claim (Pomeroy, Code Rem. (4 ed.), § 650); and, therefore, if C. C. Carter has pleaded a cause of action in his answer arising ont of the “transaction” set forth by Martha A. Chance as the “foundation” of her claim, then the former has pleaded a counterclaim.
The action of ejectment involves both the right of possession and the right of property. The right of possession depends npon a right of property, because the right of possession must be traced to some estate in the property; and there can be no right of possession unless it is referable to and is founded upon an estate in the property. The plaintiff merely states in
The conclusion that the answer filed, by the defendant is not a counterclaim within the meaning of Section 74, L. O. L., is strengthened by the inference to be drawn from the history of the chapter concerning “action to recover real property” embracing Sections 324 to 340, L. O. L., inclusive. In 1862 the legislature passed an act entitled “An act to provide a Code of Civil Procedure.” Section 72 of that act is reproduced as Section 74, Lord’s Oregon Laws, and Sections 312 to '329, except Sections 325, appear in the present Code as Sections 324 to 340, and therefore Section 74 and Sections 324 to 340, L. O. L., inclusive, were adopted at the same time and as parts of the same legislative act.
The judgment is reversed, with directions to enter a judgment of nonsuit.
Reversed With Directions. .