102 Ark. 367 | Ark. | 1912
(after stating the facts). Although appellee, in his complaint, sets out the contract between him and appellant, he asks no affirmative relief as against appellant on this contract. His complaint was for the redemption of the land from the sale under the mortgage. It was really unnecessary for him to have made the appellant a party to the suit, and the contract which he set up was not germane to the relief of' redemption which he sought by his complaint. See Tombler v. Sumpter, 97 Ark. 480. The court obviously treated it as unnecessary and foreign to the issue on the question of redemption, and therefore dismissed appellant’s cross complaint for specific performance and alleged damages growing out of the failure on the part of appellee to perform the contract set forth.
The contract set up in the complaint was neither the foundation of the appellee’s claim, nor was it connected with the subject of the action. As we have stated, the subject-matter of the action was the redemption from the mortgage sale. The matters and things set forth in appellant’s cross complaint, if true, would not in any manner entitle him to defeat appellee’s right of redemption.
This court in Hays v. McLain, 66 Ark. 400, held (quoting syllabus): “In a suit to- enforce specific performance of a contractxto convey land, defendant can not, by way of counterclaim, ask foreclosure of a mortgage on the land given by plaintiff to defendant.”
The court quotes in its opinion section 745 of Pomeroy’s Code Remedies, where the learned author, after reviewing many adjudged cases, said: “These cases must be considered as establishing the doctrine that the defendant’s cause of action in order to constitute a valid counterclaim, must to some extent defeat, modify, qualify or interfere with the relief which would otherwise be obtained by the plaintiff.” See, also, Mitchell v. Moore, 87 Ark. 166.
Section 6099 of Kirby’s Digest -provides that: “The counterclaim mentioned in this chapter must be a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contract or transactions set forth in the complaint as the foundation of the plaintiff’s claim or connected with the subject of the action.”
Here the counterclaim set up in appellant’s cross complaint has no connection whatever with the foundation of plaintiff’s claim, and is not in any manner connected with the subject of the action, whieh, as we have shown, is purely the question of appellee’s right to redeem. The court properly treated 0the other allegations, as to the contract as incidental and unnecessary to the relief sought. Its judgment striking appellant’s cross complaint from the files of the court was correct, and it is therefore affirmed.
