| Ark. | Apr 22, 1899
Lead Opinion
(after stating the facts.) The court is of the opinion that it does not appear from the facts in this case that Mrs. Eobinson (Charity A. McLain) violated her agreement with the appellant, Hays. We think that the fair and reasonable construction of said agreement is that she herself would not make resistance to his suit for foreclosure of the two mortgages, nor instigate such resistance. We think it sufficiently appears that she did neither. She was not responsible for the action of John C. McLain, her step-son, in making such resistance.
Hays says that, by reason of the delay caused by such resistance, he lost two years’ rent of the land, but he admits that he received the interest on his debt during the time. It is not apparent that this delay in the foreclosure suit would not have occurred had there been no resistance.
We are of the opinion that the decree that the plaintiff, John Hays, should make deed to the “lower place” to the heirs of Mrs. C. A. Eobinson is correct, and should be affirmed. The appellant’s cross-complaint should have made the administrator of Mrs. Eobinson a party, as it sought to enforce a money demand against her estate. It should-also have made the trustee, holding the legal title, defendant.
Was the cross-complaint of appellant germane to the causw of action in the original complaint? We think not. “When a defendant has a cause of action against a co-defendant, or a person not a party to the action, and affecting the subject-matter of the action, he may make his answer a cross-complaint against the co-defendant or other persons. Sandels & Hill’s Digest, § 5712.
The Code defines a counter-claim to be “a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the eoutract or transactions, set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.” Section 117, Civil Code; Sandels & Hill’s Digest, § 5723. It is apparent that the cause of action in the appellant’s cross-complaint did not arise out of the contract or transactions set forth in the original complaint. Is it connected with the subject of the action? It is sometimes difficult to determine when a-cause of action set forth in a counter-claim is connected with the subject of the action. We think, however, in this case that the cause of action set up in the counter-claim is a separate and independent cause of action, not connected with the cause of action set forth in the original complaint. The original action was to enforce specific performance of a contract to convey land. The cross-complaint asked a decree to foreclose a mortgage upon the land. It seems clear that there was no connection between the causes of action.
“A counter-claim, eo nomine, was unknown in the former system of pleading; but the subject-matter of such a plea was, in actions ex contractu, often available under a plea which might be styled recoupment. * * * The defense termed counterclaim under the Code is but the plea of recoupment under the' old practice, and, in general, is to be governed by the same practice, except [that] under the provisions of sections 418 and 419, Civil Code, if the defendant’s demand exceeds that of the plaintiff, he may be entitled to a judgment for the excess. This defense only applies, however, to breaches of stipulations, fraudulent or otherwise, growing out of the contract sued upon, and not upon entirely separate and distinct transactions.” Bloom v. Lehman, 27 Ark. 490, 491.
In section 745 of Pomeroy’s Code Remedies, it is said (after reviewing many adjudged cases) that “these cases must be considered as establishing the doctrine that the defendant’s cause of action, in order to constitute a valid counter-claim, must to some extent defeat, modify, qualify or interfere with the relief which would otherwise be obtained by the plaintiff.” This limitation “results from the fact that the codes make no provision for two independent and antagonistic judgments rendered in favor of the adverse parties in the same action. One judgment alone is contemplated by the statute, which shall determine the substantial rights of the parties.” Pomeroy, Code Remedies, § 747.
In Newman on Pleadings and Practice, p. 610, it is said: “A counter-claim,however, under the Code, is but another name for a cross-petition, and may be so styled with propriety, especially in an action prosecuted by equitable proceedings.” Hill v. Butler, 6 Ohio St. 207; Newman, Pldg. & Pr. p. 612. In Newman, Pldg. & Pr. p. 612, it is said: . “The language of the amendment to the code must, no doubt, be understood as embracing substantially the same subject-matter, in this respect, that was necessary for a cross-petition under the former system. Under that system, anciently a cross-bill was defined to be ‘a bill brought by a defendant against the plaintiff or other parties in a former bill pending, touching the question in that bill.’ * * * ‘If the bill was filed for a certain purpose, the defendant to the bill could not, by any cross-bill, bring into litigation in that suit other causes of action which he might have against the complainant, unless there existed some connection or special circumstances, such as insolvency, non-residence, etc., which would render it necessary, in order to avoid irreparable injury. Thus, if a bill was filed for specific execution of a contract for land, the defendant could not, by way of cross-bill, bring into litigation * * * a debt due by the complainant unconnected with the contract sued on.”
What is a counter-claim is a vexed question, but we think the citations from the authorities above are sufficient to show that the appellant’s cross-complaint in this-ease is not one, within the meaning of the authorities.
The decree of the circuit court is in all things affirmed, without prejudice to the right of appellant to bring an independent action to foreclose his mortgage.
Concurrence Opinion
I concur in the opinion of the court except as to what is said in regard to the counter-claim. Mr.Bliss says: “The cause of action has been described as being a legal wrong threatened or committed against the complaining party; and the object of the action is to prevent or redress the wrong by obtaining some legal relief. The subject of the action is clearly neither of these; it is not the wrong which gives the plaintiff the right to ask the interposition of the court, nor is it that which the court is asked to do' for him, but it must be the matter or thing, differing both from the wrong and the relief, in regard to which the controversy has arisen, concerning which the wrong has been done; and this is, ordinarily, the property, or the contract and its subject-matter, or other thing involved in the dispute.” Bliss, Code Pldg. § 126, and note. This is sensible and. plain, and ought to be adopted as the proper construction. The court, in my judgment, fails to properly discriminate between the cause of action and the subject of the action. Here the cause of action is the alleged failure to convey certain lands by deed. The object of the action is to require the appellant to make the deed conveying the land, and thus redress the wrong done in withholding it. But the subject of the action is not the wrong done, nor the relief asked, but it is the land itself for which the deed is sought, and about which the controversy has arisen. There is no good reason why a mortgage given by appellee to appellant upon the same land should not be foreclosed in this proceeding, but, on the contrary, the best of reason why it should be done, namely, to end the controversy between the parties litigant concerning this land in one suit, and thus avoid the delay and costs incident to another suit. Thus both the letter and spirit of the statute to avoid a multiplicity of suits would be subserved.