Rylander v. Laursen

113 Wis. 461 | Wis. | 1902

Winslow, J.

A counterclaim must be “pleaded as such and he so denominated.” Sec. 2656, Stats. 1898. The technically correct way to plead a counterclaim under this statute is to commence that part of the answer which is supposed to set forth a counterclaim with the distinct statement that the allegations following are pleaded as a counterclaim. The form frequently used and which seems unobjectionable is, “The defendant, by way of counterclaim, herein alleges.” But, while this is doubtless the better way, it cannot be said to be the only way. The only requirement of the statute is that it be pleaded as such, and be so denominated. If by that liberál construction which must be given to a pleading (sec. 2668, Stats. 1898) it appears that any definite part of the answer is pleaded as a counterclaim, and is so denominated in the answer itself, then that part of the answer must be considered as fulfilling the requirement of the statute as to form of pleading, regardless of the fact whether it be denominated a counterclaim at the beginning or at the end. All who have had experience in trial courts know that counterclaims are frequently pleaded by first setting forth the alleged facts and concluding with the statement, in substance, that the defendant pleads said facts as a counterclaim in the action. This is certainly allowable, and was the course attempted to be followed here. The first question is, therefore, What allegations of the answer are pleaded as a counterclaim, and so denominated by the answer itself ? As will be seen by referring to the statement of facts, the affirmative part of the answer sets forth an alleged agreement with the plaintiff by the terms of which the defendant moved his mill upon the plaintiff’s land upon condition that the plaintiff would clear and burn off the rubbish about the site of the mill; that the plaintiff did not perform his agreement, and that, as a consequence of his failure, the defendant was obliged to do such clearing himself, and keep a night watchman until such clearing was done, and necessarily expended in so doing the sum of $137.97, “which said amount this defendant pleads as a counterclaim;” and again, “this defendant therefore alleges as a counterclaim to the plaintiff’s alleged cause of action the sum of $137.97.” While the pleading is very inartificial, still we think that by any reasonable rule of construction it must be held that by the clauses quoted the pleader, in effect, has denominated all the preceding allegations of the answer which set forth the supposed agreement and its breach with resulting damage to the defendant as a counterclaim, and so fulfilled the formal requirements of the statute. It cannot be reasonably supposed for a moment that the pleader intended to denominate the allegation of damage alone as a counterclaim.

Giving the answer this construction, the question presented is whether the facts referred to constitute a counterclaim. The action being one in tort, the counterclaim must be 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. Stats. 1898, sec. 2656. It is very clear that the supposed counterclaim does not come within the rule. The transaction sued on by the plaintiff are two tortious acts of the defendant, — one in May and one in June, — by which the defendant negligently allowed fire to escape from his control onto the plaintiff’s lands and destroy his property. The supposed counterclaim is a cause of action for breach of a contract made in the preceding April, by which the plaintiff was to clear certain lands of rubbish, and failed to do so. It does not arise out of the transaction sued upon by the plaintiff, nor is it connected with the subject of the action under the broadest construction which can be given to the words.

By the Court. — Order affirmed.