113 P. 2 | Or. | 1911
delivered the opinion of the court.
“Any party to any process or proceeding before or by any inferior court, officer, or tribunal may have the decision or determination thereof reviewed for errors therein, as in this chapter prescribed, and not otherwise. Upon a review, the court may review any intermediate order involving the merits and necessarily affecting the
“The plaintiff may demur to an answer containing new matter when it appears upon the face thereof that such new matter does not constitute a defense or counterclaim.”
And this is the ground of the demurrer to the answer in question. Applying the definition of a counterclaim quoted above to the answer in question, we discover that there is nothing in the answer to show that the counterclaim arose out of the contract or transaction set forth in the complaint. An examination of the dates alleged in the complaint and in the answer shows that they occurred at different times and not as parts of the same transaction, so that the counterclaim is excluded from the first subdivision of Section 74. It cannot be classed under the second subdivision of that section because it does not profess to arise upon a contract.
The circuit court erred in dismissing the writ, and its judgment should be reversed. The cause is remanded to the circuit court, with directions to there enter a judgment in favor of the plaintiff and against the defendant for $15.75, the amount found by the justice’s court to be due to the plaintiff from the defendant on the cause of