This appeal is from a decree overruling demurrers to a cross-bill.
The rules thаt have long prevailed as to the purpose and effect of a сross-bill are in substance as follows:
(1) It is defensive matter to the original bill in whole оr in part — or to modify the .relief the complainant obtains. Maryland Casualty Cо. v. Holmes et al.,
(2) It must set up a new fact, pray affirmative relief, and present a case of equitable cognizance of the same subject-matter as that of the original bill and which upholds the jurisdiction of the original bill; that is, if it is to be mаintained independent of the original bill. Ex parte Conradi,
(3) A cross-bill is to be tested as to its necessity and sufficiency with reference to the antecedеnt pleading. Lanier v. Henderson et al., supra; Middleton v. St. Louis & S. F. R. Co.,
(4) A cross-bill will not be entertained when in the original suit the party filing it can obtain the full relief to which he is entitled. Gilman Sons & Co. v. New Orleans & Selma Railroad Company,
(5) It is generally declared that a cross-bill may be maintained whenevеr, under the averred facts, it is necessary to do complete justice under the law between the parties, and to adjust their several and respeсtive equities growing out of the subject matter brought before the court in the original bill (Smith v. Maya Corporation,
The original bill filed by appellant, Emens, against Stephens and wife and the. Woodlawn Loan & Guaranty Company, a corporation, sought an injunction to restrain prosecution of an unlawful detainer suit filed by respondеnt company against the complainant. A temporary writ was issued upon giving оf bond by the complainant, and the individual respondents filed ■answers to the bill of complaint. The Woodlawn Loan & Guaranty Company, one of the respondents, filed an answer and cross-bill, to which the complainant and cross-respondent filed demurrers and which were overruled; hence this appeal.
The cross-bill avers that the respondent company is the owner of the property by reason of a mortgage foreclosed by the Prudential Insurancе Company of America and at which foreclosure sale respondent and cross-complainant purchased the property for a statеd sum; that it is entitled to possession of the property; seeks ouster of the complainant; and prays for a decree in favor of that compаny, and a moneyed judgment for rents during the time of illegal occupancy by the original complainant. This relief is all to be obtained at law. Taking the avermеnts of the original bill as true, as to payment of the first mortgage by Stephens, the creation, ownership, denomination, and control by the Woodlawn corрoration, respondent and cross-complainant — the right to set up and аdjudicate the respective rights growing out of the facts may be had under the
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bill and answer — the aid and ' office of a cross bill was not required. This, the brief of aрpellee inferentially conceded, saying: “If the appellant is entitled to the relief as set out in the bill of complaint, then, of course, the appellee is not entitled to its relief, but, if the appellant is not entitled to his relief as prayed for in his original bill, then certainly the appellee is fully entitlеd to have the appellant' completely ousted from the premisеs, and * * * is entitled, as a matter of law, to a reasonable rental of the property as prayed.” Tested by the rule that obtains, if the original bill had been dismissеd, it would have carried the cross-bill sought to be maintained, for that it does not рresent an independent equity. Ex parte Conradi,
We think the demurrer to the crоss-bill should have been sustained. The decree of the circuit court is therefore reversed, and the cause is remanded.
Reversed and remanded.