26 S.D. 211 | S.D. | 1910
Plaintiff brought this action to quiet title to certain lands, and made one Albert C. Boyle defendant. Judgment by default was taken as against Albert C. Boyle, and after-wards, upon a showing made by the heirs of Boyle to the effect that said Boyle died prior to- such judgment, the judgment was opened up, and such heirs allowed [o- answer.. In such answer, they denied plaintiff’s claim of title, alleged title in themselves, and prayed affirmative relief by asking that title to such land be quieted in them. They failed, however, to -designate any part of such answer as a counterclaim. The plaintiff replied to such answer. After issue so joined, the plaintiff asked leave to dismiss the action without prejudice to the bringing of another action. This motion w-as resisted upon the following grounds: “First, that this case cannot be dismissed as against these' defendants for the reason that the defendants have set up an affirmative defense in their answer, and asked for an affirmative relief.- Second, for the reason that, if this case is now dismissed out of court, the defendants will be prejudiced necessarily, and deprived of substantial right, in that the io-year statute of limitations in this state-concerning payment of taxes and possession for io years, or the
Appellant is clearly in error, for the 'reasons: first, that for the purposes of the motion the answer must'have been treated as containing a counterclaim; second, that, even if such answer were not to be treated as containing a counterclaim, the facts .before the court fully justified the order. We think it will be conceded that whenever a sufficient counterclaim has been pleaded, the plaintiff cannot against the consent of defendant dismiss the action. Was there then a counterclaim pleaded herein? This court in the case of State et al. v. Coughran, 19 S. D. 271, 103 N. W. 31, has adopted the rule, adopted by -the Supreme Court of Wisconsin in Stowell et al. v. Eldred, 39 Wig. 614, and approved by the Supreme Court of California, that “no averments in a pleading will be treated as constituting a counterclaim, unless they are so
The order of the trial court is affirmed.