106 Ind. 63 | Ind. | 1886
It is shown by the record of this cause, that on the 10th day of April, 1885, appellee Roberts recovered a judgment in the court below against James B. Wilson, then in full life, for his damages assessed by the jury, and his costs therein expended. Wilson appealed from such judgment, and on the 13th day of June, 1885, filed a transcript of the record, with his assignment of errors endorsed thereon, in the clerk’s office of this court, and on October 1st, 1885, the cause was duly submitted for hearing and final decision. After-wards, on November 6th, 1885, the death of Wilson, intestate, and the appointment and qualification of James B. Miller, as administrator of Wilson’s estate, were suggested to the court, and, on appellee’s motion, James B. Miller, administrator, etc.,.was substituted as appellant in this cause.
Several errors have been assigned upon the record, but as appellant’s counsel has complained in argument of only one alleged error, the other errors assigned will not be considered. The one error upon which counsel rely for the reversal of the judgment below, is the alleged error of the court in
This is the entire argument of appellant’s counsel upon the point under consideration; we are not convinced thereby that the ruling complained of was or is erroneous. It may be true, ,-as-counsel says, that tho facts stated in the pleadings were “a good and meritorious defence to the action; ” but, if they were, they should have been pleaded as a defence in an answer to the complaint, and not as a cross action, by way of ■counter-claim. It is not every good and meritorious defence to an action which can be pleaded thereto as a counter-claim, in such manner as to withstand a demurrer for the want of .sufficient facts. If Roberts had been justly indebted to appellant’s decedent, at and before the commencement of this suit, for goods sold and delivered, or upon a promissory note, in a sum largely in excess of the amount demanded by Roberts, such indebtedness would not have constituted a proper matter of counter-claim, and, if thus pleaded, the pleading would have been clearly bad on demurrer. In section 350, R. S. 1881, a counter-claim is thus defined :
“A counter-claim is any matter arising out of or connected with the cause of action which might be the subject of an .action in favor of the defendant, or which would tend to reduce the plaintiff’s claim or demand for damages.”
In section 351, R. S. 1881, a counter-claim is referred to .as a matter “ arising out of the contract, or transaction set forth in the complaint as the ground of the plaintiff’s claims, ■or any of them.”
Under these statutory definitions, it is very clear, as it seems
In Second Nat’l Bank, etc., v. Hutton, 81 Ind. 101, in speaking of a bill of particulars, in a similar ease, the court said: “ The office of a bill of particulars, in such a case as this, is to make the plaintiff’s precise cause of action more certain, definite and specific, than the same- has been stated in the common counts. In such a case, without regard to what may have been stated in general terms in the complaint, the plaintiff’s evidence and right of recovery are limited, under the law, strictly and precisely, to the exact claim or cause of action shown or set forth in the bill of particulars.”
So, we think, in the case at bar the appellant’s counterclaim must be limited, under the statute, to matter arising out of, or connected with, one or more of the several items of account set forth in the bill of particulars filed with, and
The court did not err, we think, in sustaining the demurrer to this counter-claim.
The judgment is affirmed, with costs.
