63 Ind. 365 | Ind. | 1878
Suit by Warren O. Bryant and others for partition of a certain parcel of land.
Adam Egolf, who claimed an interest in a portion of the land, was made a defendant. He filed what he denominated .a cross complaint, in which he alleged, that, to save the land for all the owners, by preventing its sale upon a foreclosure of a mortgage existing upon the whole of the land, he p>aid said mortgage, and now asked that his claim be adjusted and enforced, etc. Afterward the following entry appears of record:
“ Warren C. Bryant et al. v. Adam Egolf. Complaint for partition.
“ Row come the said plaintiffs, by Thomas M. Eells, their attorney, and comes also the said defendant, by Tousley & Prickett, his attorneys, and thereupon, on motion of plaintiffs, the petition of plaintiffs is dismissed at plaintiffs’ costs. And it is ordered and adjudged by the court that the cross complaint of the defendant follow the complaint, and that said cross complaint he, and hereby is, dismissed therewith, by virtue of plaintiffs’ said dismissal; to which order and decision of the court in so dismissing his cross complaint the defendant objects and excepts, and prays án appeal to the Supreme Court; which is granted, on the filing by said defendant of an appeal bond, in the penal sum of one hundred dollars, within sixty days, with John Rivir as surety, which bond is by the court approved It is therefore considered by the court that the said' defend*367 ant recover of said plaintiffs liis costs and charges herein, taxed at-dollars and — cents.”
No bill of exceptions was filed. We think, under section 559 of the code, a hill of exceptions was not necessary to reserve the exception in this case.
The pleading denominated a cross complaint was clearly a counter-claim. Tabor v. Mackkee, 58 Ind. 290, and cases cited; Harness v. Harness, ante, p. 3.
The court erred in holding that the dismissal of the com-, plaint carried with it, out of court, the counter-claim.
That part of the judgment is reversed, etc.
