State ex rel. Mitchell v. Smith

14 Wis. 564 | Wis. | 1861

By the Court,

Dixon, 0. J.

The transactions detailed in Sweet’s answer, which, for the purposes of this proceeding as well of the relator’s motion to strike out certain parts of it as irrelevant and redundant, must be taken to be true, are continuous and connected, and not remote or detached from the cause of action set forth by the relator, as is contended by his counsel. The answer expressly avers that each transfer of lands to Mitchell, subsequent to the first and including that by which he acquired the title to the lots in question, was, so far as Sweet was interested, made upon the same understanding and for the same general purpose as the first, - to wit, to be held by him in connection with the other lands, as security for such sums as Sweet might then or thereafter owe to him, with power to sell and convey the same, and apply the proceeds in liquidation of such indebtedness. This is, in effect, the same as if all the lands had been transferred at one time, and it would seem impossible, or at least improper, for the court to separate transactions which the parties, by their acts and agreements, have declared shall go together and be deemed identical. We do not see how it could be done consistently with a fair and proper adjudication of their rights. If A purchases of B two pieces of land and pays for them, taking possession under the contract but having no deed, and B sues him in ejectment for one of them, may he not in defense set up the contract and payment for both, even though the court could not, under the statute, adjudge a conveyance to him of the piece not included in the action? Would he not be bound to set forth his contract and payment for both in order to make his defense complete? And could the court-strike out all that portion of his answer which related to the piece not named in the complaint, as irrelevant and redundant ? We think not. It seems to us that it would be necessarily and properly alleged. We have illustrated by a case in part supposed by the counsel for the relator, and we think the illustration applicable to the action out of which this proceeding arose. Mitchell sued Sweet in ejectment in the circuit court of Milwaukee county, for a part of two lots situated in the city of Milwaukee. Sweet answered that the lots, together with divers other tracts of land which had been conveyed to Mitchell at different times, were held by him as security for his (Sweet’s) indebtedness, which, by sales made by Mitchell, pursuant to the understanding of the parties, and by payments, had been fully discharged ; and prayed that the several! conveyances might be adjudged to be mortgages, and that Mitchell might be decreed to convey to him the lots described in the complaint Mitchell moved in the circuit court to strike out as irrelevant all those parts of the answer, as well in the body of it as in the prayer for relief, which reía-ted to the lands which were transferred by conveyances other than that by which the title- to the lots i.n question was acquired. Pending the motion, Sweet petitioned the court for an order changing the place of trial, on the ground that the presiding judge was prejudiced against him. The prayer of the petition was granted, and the cause sent' to the county court of Milwaukee county, of which the respondent is judge. .The motion to strike out was there' renewed, when the respondent refused to act, holding that he had no jurisdiction over the matters stated in the answer; and thereupon this proceeding was instituted to compel him to do so. . The alleged want of jurisdiction proceeds from the limitation of the powers of that court to actions wherein-the value of the property or the amount of money in controversy does not exceed twenty thousand dollars. Laws of 1860, chap. 862, sec. 1. -The matters contained in the'answer, if they are all to be investigated and passed upon in the action, amount to three or four times that sum. It follows from what has been said, that the allegations in the body of the answer or second defense, cannot be disregarded or. stricken out; and the conclusion thence that the county court has no jurisdiction seems very plain. And it is immaterial to this question whether the relief asked by the answer as. to the other tracts of land, can be granted in this action or not; for if it cannot, still all the transactions must be gone into and determined, in order to ascertain whether Sweet has a defense and is entitled to the relief which he' asks as to the lots for which the suit is brought; arid this involves the consideration of matters over which the "county court has no control.

It is unnecessary for us to- determine here whether the relief asked as to the other lands can be granted in the action, or, if it cannot, whether that part of the answer which demands it should be stricken out on motion. It is certain that the demand for it furnishes no reason' for striking out the principal facts stated, when it can be seen that they are otherwise pertinent to the case. The relief or judgment claimed is not a matter which goes to .the cause of action or ground of defense, .bui respects the event merely, and hence is not cause of demurrer. Van Santvoord’s PL, 368. It is perhaps enough, that objection can betaken to it on the trial.

Nor is it necessary to enter upon the questions involving the merits of Sweet’s defense. It is enough that they are such that if finally held to be valid they would deprive the county court of power to try them. ‘

Nor need we discuss the question whether, if the action had originally been brought in the county court, the filing of Sweet’s answer would have taken away its jurisdiction. It is sufficient that it was commenced in a court having jurisdiction both of the cause of action and of the defense, and that that court was not authorized to send it to the county court, it appearing that the matters involved were beyond its jurisdiction. Laws of 1860, chap. 362, sec. 5.

The position that Sweet procured the change of venue to the county court, and thereby discontinued his counter-claim, is not supported by the record. It appears that he applied for a change of venue, without indicating to what court the cause should be sent, and the order sending it to the county court rather than to the circuit court of some other county, cannot be regarded as having been made by his procurement or consent.

It follows that the respondent was right in refusing to act upon the motion, and that the demurrer to the return to the alternative writ, and the motion for a peremptory writ, must both be overruled.