48 Wash. 442 | Wash. | 1908
Epitomizing the pleadings in this case, the complaint alleged, that at the time of the commencement of the action and for more than fifteen years immediately prior thereto, plaintiff had been in possession of certain lands described therein; that theretofore the plaintiff had purchased said lands from the Northern Pacific Railroad Company, receiving therefor a land contract, and that the said land contract was duly paid by the said plaintiff to the said railroad
When the case came on for trial, the plaintiff asked for a continuance, which was denied, and he then moved to dismiss his action, which was also denied by the court. The case then proceeded to trial, both the plaintiff and. defendants offering testimony. Judgment was entered in favor of the defendants. The plaintiff appeals from such judgment, assigning that the court erred in denying appellant’s motion for a continuance, and denying appellant’s motion to dismiss the action and for judgment of nonsuit, and in entering judgment for respondents.
On the second proposition, that the court erred in not allowing the plaintiff to dismiss the action and for a judgment of nonsuit, it was decided in Waite v. Wingate, 4 Wash. 324, 30 Pac. 81, that the plaintiff had a right to dismiss his action where the answer contained denials of some of the material allegations of the complaint, and also affirmative defenses which defendants had denominated a counterclaim, and in which title was set up in themselves, which it will be seen is substantially the condition of the case here. But this case was overruled in Washington Nat. Building etc. Ass’n v.
“It is concluded that the rule announced in Waite v. Wingate, supra, is not in consonance with the spirit of the code nor in accord with the better authorities.”
And in concluding the case it was said:
“It would seem inconsistent with our liberal practice to dismiss the action, and then allow the same relief upon the commencement of another action in different form.”
It is contended by the appellant that the affirmative matter pleaded in the answer does not constitute a counterclaim and is not a set-off. Bal. Code, § 4912 (P. C. § 379), provides that:
“The answer of the defendant must contain:- — •
“(1) A general or specific denial of each material allegation of the .complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief ;
“(2) A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language without repetition.”
Section 4913 (P. C. § 380), says:
“The counterclaim mentioned in the preceding section must he 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, or connected with the subject of the action.”
The subject of the. action here is the title to the land in controversy, and certainly the answer of the defendants arises out of both the contract and the transaction set out in the complaint, and is very materially connected with the subject o.f the action. The general rule is that statutes allowing coun
• The reason assigned by appellant to sustain his contention that the affirmative answers are insufficient to constitute a counterclaim, is that it does not show any adverse claim on the part of the appellant. We think this is too narrow a construction to put upon the answer. While the answer in words does not state that the appellant has an adverse claim, the whole tenor of the answer is to the effect that he does. The complaint which brought forth the answer alleged tins-claim in no uncertain language, and was notice to the respondents that the appellant did claim the land in question. So that it would be doing violence to a construction of the whole record to hold that there was no allegation in the answer that the appellant alleged a claim to the land; and also the prayer of the answer, which is a part thereof, and which demanded relief from the allegations of the complaint in relation to the title to the land.
The court on the merits found all the questions of fact in favor of the respondents, finding that none of the averments of the complaint had been sustained. These findings are not excepted to. No error is discovered in the record, and the judgment will therefore be affirmed.
Hadley, C. J., Crow, Mount, Root, Fullerton, and Rudkin, JJ., concur.