88 P. 16 | Utah | 1906
This action is one in equity in which plaintiff prayed for injunctive relief and incidental damages growing out of an alleged trespass committed by defendant upon real estate owned by the plaintiff. The pleadings are very voluminous, comprising both amended and supplemental answers, to all of which demurrers, both general and special, were interposed and overruled. In view of the result in the lower court, and to the conclusions reached by us upon the whole record, it could subserve no practical purpose to set forth, in detail, either the pleadings or facts upon which the final judgment
The evidence is not preserved in a bill of exceptions, and, the judgment being supported by the findings and conclusions, it will be necessary to consider such errors only as may affect the judgment indirectly, and these may be covered by condensing appellant’s assignments into two, to wit: (1) That it was error to overrule the demurrer to the alleged counterclaim; and (2) that the court erred in denying appellant’s motion to retax costs, and in refusing to strike'the memorandum from the files.
We need not stop now to consider the precise matters that may or may not be counterclaimed. In this ease, however, the matters set forth by appellant, in his complaint, all sound in tort, and this is likewise true of the counterclaim of respondent, to which the demurrer was directed. The counterclaim, therefore amounted to an attempt to< meet a tort with another tort. The great weight of authority on this subject, as well as the reason of the thing, under statutes permitting counterclaims, is to the effect that a tort cannot be counterclaimed against another tort. Such is the. rule adopted in this state. (Marks v. Tompkins, 7 Utah 421, 27 Pac. 6.) The whole matter is learnedly discussed in Pome-roy, Code Rem. (4th Ed., sections 781-792. The court erred,
Did the court err in denying appellant’s motion to retax costs, and in not striking the memorandum of costs from the files? The motion of appellant, so far as material here, is as follows: “Move the court to retax the costs in said action, as shown in the memorandum of costs and disbursements, filed by the above-entitled defendant, in the above-entitled action, on October 5, 1905, and to strike said memorandum
In view of the proceedings, concretely considered, as we must consider them on appeal, the appellant has sustained no substantial injury. The judgment is therefore affirmed, with costs.