Noonan v. Orton

30 Wis. 356 | Wis. | 1872

Lyoít, J.

If the defendant in either of the counter-claims has stated “ a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action,” the demurrer thereto should have been overruled. If he has failed to state therein such a cause of action, the demurrer was properly sustained.

I. We can scarcely believe that the first counter-claim was seriously interposed. The idea is certainly novel, that a defendant may set up, by way of counter-claim to an action, that such, action was brought maliciously and without probable cause, and claim damages therefor. No plausible grounds upon which this counter-claim can be sustained are suggested to our minds, unless it be assumed that the bringing of this action is a transaction which had its foundation in malice, and that, therefore, the counter-claim arises out of a' transaction which is the foundation of the plaintiff’s claim. But this view fails somewhat to commend itself to our minds as the correct one, and we have concluded upon the whole, that, in the absence either of principle or authority to sustain it, the safer course is to hold that the first counter-claim is not available in this action.

I. As to the second counter-claim, it is only necessary to remark that the “ foundation” and “ subject” of this action is the alleged abuse of the process of the law by the defendant, in commencing and prosecuting the garnishee proceedings set out in the complaint; and while this counter-claim may be connected with the subject of the original action in which those proceedings were had, we are entirely unable to perceive how it can be successfully maintained that the same “ arises out of the transaction set forth in the complaint, as the foundation of the plaintiff’s claim,” or that it is connected with the subject of this action.

TTT. But it is argued that the complaint fails to state facts sufficient to constitute a cause of action, and that, therefore, the demurrer should have been sustained as a demurrer to the complaint. This presents the question as to the sufficiency of the complaint.

It appears that a demurrer to the ninth cause of action was sustained, and the counter-claims are interposed generally in the action, that is, the same are applicable to the remaining eight counts. If, therefore, any of those counts state a good cause of action, the demurrer to such counter-claims cannot be sustained as a demurrer to the complaint, although some of the counts fail to state a cause of action. This is a familiar rule of pleading.

Without repeating here the allegations of the complaint, or examining the different counts with reference to a determination of the sufficiency of each, it is only necessary to say that we have examined the complaint carefully, and are of the opinion that it contains a statement of facts sufficient to constitute a cause of action. It is believed that this view is sustained by the following authorities, Sommer v. Wilt, 4 S. and R., 19; Savage v. Brewer, 16 Pick., 453; Rogers v. Brewster, 5 Johns, 125; Fripp v. Martin, 1 Spears (So. Car.) 236; Tomlinson v. Warner, 9 Ham., 103; Page v. Cushing, 38 Me., 523; Bump v. Betts, 19 Wen., 421.

It will appear from the above cases, and numerous others, both in England and this country, which might be cited, were it necessary, that the gravamen of the action is, that the plaintiff has improperly been made the subject of legal process to his damage. 2 Greenl. Ev., § 449. It cannot be doubted that the complaint in this action alleges that the defendant improperly subjected the plaintiff to damage by means of the garnishee proceedings against the plaintiff’s debtors.

IV. There is no force in the objection that the proceedings on the demurrer to the counter-claim are stayed because an appeal is pending in this court from an order striking out some other portion of the answer. An appeal from an intermediate order before judgment, does not operate to stay proceedings in the action, unless the court below so orders. Taylor's Statutes, 1641, § 24. No such order appears in this case.

The order of the county court sustaining the demurrer to the first and second counter-claims in the answer, must be affirmed.

By the Court — So ordered.