109 Ky. 643 | Ky. Ct. App. | 1901
Affirming.
The appellees by this action sought to recover judgment for damages for trespass and destruction of crops committed by the cattle of appellant. It is alleged that the cattle were turned into appellees’ fields, and that they came into the fields through gates left open by. and gaps left down by appellant in a fence along the line dividing the farms of appellees and appellant. The defense offered is a denial of each and every allegation of the petition, and in a second paragraph the appellant pleaded that by a contract in writing a division fence was established, by which each party agreed to keep up a certain portion of the fence dividing their lands; that appellees had failed to maintain their portion of the division fence, and by reason thereof the cattle and stock of appellees had on divers occasions committed trespasses on appellant’s land, and had destroyed his crops; and this damage he fixed at $250, which he pleaded as a counterclaim. On motion of appellees the court ordered the whole of the second paragraph of the answer pleading the counterclaim stricken, and upon trial on the issue joined, a verdict and judgment for $200 was rendered for appellees. The motion for a new trial having been overruled, this appeal is prosecuted to reverse that judgment.
The errors assigned in the reasons for a new trial are that the verdict is not sustained by the evidence, and the action of the court in striking the counterclaim from the answer. A counterclaim is defined by section 96 of the Code to be “a cause of action in favor of a defendant against a plaintiff . . . which arises out of the contract or transaction, stated in the petition as the foundation of the plaintiff’s claim, or which is connected with the subject of the action.” In the case of Slone v. Slone, 2 Met.,
There is nothing in the plea of appellant tO' connect the trespasses alleged to have been committed by appellees’ cattle with the trespasses complained of in the petition. It may be that the cattle of appellees have destroyed the crops of appellant to the extent claimed, and it may be that they got into appellant’s fields because appellees failed to keep their part of the division fence in repair. All of this is conceded by the motion to strike, which is in the nature of a demurrer. But, if so, that cause of action in appellant is not pleadable in this action to recover for a wrrong at another time and place, and by other agencies. If the plea in the Stone ease had been that a week before or after the assault and battery complained of in the petition the plaintiff had assaulted and beaten the defendant to his damage, the court would not have- permitted it. Because the assaulting and beating complained of in that counterclaim was alleged to- have occurred at the same time and place as that complained of in the petition, and which, if true, was a complete defense, is the reason that the court gave for permitting it to be filed. It was connected with the acts and subject complained of. There was, in our opinion, no error in striking the second paragraph of the answer pleading the counterclaim, nor in refusing to permit the amendment offered to be filed. There appears no error in the instructions