58 P. 690 | Cal. | 1899
The appellant brought this action against defendant to recover fifteen hundred and sixty dollars and thirty-six cents for beef furnished by plaintiff to defendant at his request. The defendant answered, and, without denying any of the allegations of the complaint, alleged as a counterclaim that at the time of the commencement of the action the plaintiff was indebted to defendant in the sum of one hundred and ten dollars and eighty-nine cents for beef furnished by defendant to plaintiff at his request. The plaintiff filed a demurrer to the defendant's answer upon the ground that the court had no jurisdiction of the subject matter for the reason that the counterclaim amounts to less than three hundred dollars. The court sustained the demurrer and defendant declined to amend. Judgment was thereupon entered in favor of plaintiff for the amount claimed in his complaint. This appeal is by defendant from the judgment. The sole question here is as to the order sustaining the demurrer. We think the order was erroneous. Our code (Code *293
Civ. Proc., sec. 437) provides that the answer of the defendant shall contain a statement of any new matter constituting a defense or counterclaim; that (Code Civ. Proc., sec.
In St. Louis Nat. Bank v. Gay,
In the case of Hart v. Cooper,
In the opinion the correct rule is laid down which applies to this case. It is said: "Of course, what is here said on the subject of jurisdiction has no application to the counterclaims provided for in the first subdivision of section
We advise that the judgment and order be reversed, and the cause remanded to the court below with directions to overrule the demurrer to the answer.
Britt, C., and Chipman, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are reversed, and the cause remanded to the court below with directions to overrule the demurrer to the answer.
Harrison, J., Van Dyke, J., Garoutte, J. *296