25 Mo. 576 | Mo. | 1857
delivered the opinion of the court.
According to the present practice a demurrer will not lie to an answer except so far as it contains new matter constituting a counter claim. The whole subject is regulated by article 6 of Practice in Criminal Cases. (R. C. 1855, p. 1226.) The only pleading on the part of the defendant is
The matter constituting the counter claim ought not to be blended with the matter intended simply as a defence, but should be separately stated, with all the distinctness that would be required if the defendant was suing the plaintiff in an independent proceeding; and the objection for improperly blending statements touching the defence and those relating to a counter claim may be raised by motion to strike out. The defendant may set forth as many “ counter claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both,” but “ they must each be separately stated, in such manner that they may be intelligibly distinguished, and refer to the causes of action which they are intended to answer” (sec. 13) ; and a violation of this rule will invite a demurrer.
If a defendant has a defence and also counter claims, he ought in the answer to state separately, in one portion of it, every thing which properly goes to the defence, and then distinctly state, in the nature of separate counts, matter intended as counter claims. If that part of the answer which
Applying these rules to this case, it will be observed that though the matter intended as a counter claim is so mixed with that part intended as a defence that it is difficúlt to see where one ends and the other begins, yet the objection could not be taken by demurrer; for the demurrer is to the whole answer, and it can not legitimately operate on any thing but that part which is intended as a counter claim. The proper mode of taking advantage of the bad pleading of the defendant was by motion to strike out. If the whole answer was bad, the motion should have been directed to the whole of it, or to such parts as were insufficiently stated or improperly pleaded. The facts stated in the answer showed a partial failure at least of the consideration of the note, caused by the misrepresentation of the plaintiff, and the facts alluded to in the answer, if true and charged in proper form and with sufficient legal precision, might entitle the defendant to a rescission of the contract of purchase.