The plaintiff, by virtue of a mortgage with power of sale from the defendant, claimed to be the owner and entitled to the possession of a water wheel or motor, including all patterns and fixtures for the same. The defendant denied the allegation of ownership, and set upon a counterclaim for damages to his business by reason of the unlawful seizure. There was no reply to the counterclaim.
On motion of defendant, his Honor rendered judgment by default and inquiry in favor of defendant upon the counterclaim; from which judgment the plaintiff appealed. The plaintiff sued out claim and delivery, the defendant set up as counterclaim damages accruing from such seizure, which he alleges was wrongful. There being no reply filed, his Honor gave judgment by default and inquiry in favor of defendant upon the counterclaim. This was error while the issue raised by complaint answer as to lawfulness of the seizure was undetermined.
Besides such counterclaim could not be set up in this action, for it did not arise out of the same cause of action, nor did not exist at the commencement of the action. Kramer v. Light Co.,
Error.
Cited: Griffin v. Thomas,