Glide v. Kayser

McFARLAND, J.

This is an action—which at common law would have been called replevin—to recover the possession of certain cattle. At the commencement of the action plaintiff took possession of the property under the provisions of the Code of Civil Procedure called “Claim and Delivery.” Defendant answered, denying generally the averments of the complaint, and asserting a certain lien on the property, but he did not ask for a return of the cattle or the enforcement of the asserted lien; he merely prayed for a dismissal of the action and costs. But he also filed a cross-complaint in which he averred that he was in possession of certain land, and that the cattle had unlawfully entered and trespassed upon the’ said land, and trampled upon and ate and destroyed the

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crops growing thereon, to his damage in the sum of three thousand five hundred dollars; and he prayed judgment against plaintiff for that sum of money. Plaintiff demurred to the cross-complaint on the ground that it did not contain proper subject-matter for a cross-complaint, etc., and made a motion to strike it out; but the court overruled the demurrer and denied the motion. The defendant introduced evidence tending to show damage done to his land as aforesaid, and the jury returned a verdict on the cross-complaint of one hundred and fifty dollars; and a judgment was rendered that defendant recover of plaintiff the said one hundred and fifty dollars and costs. Plaintiff appeals from the judgment and from an order denying his motion for a new trial. The main question in the case is whether or not the demurrer to the cross-complaint should have been sustained; and as, in our opinion, it was error to overrule said demurrer, it is not necessary to consider the other points made by appellant.

The provisions of our code (Code Civ. Proe., secs. 438, 442) as to counterclaims and cross-complaints are no doubt quite liberal, although not more than those of New York and other states. But we have been referred to no case where it has been held that to a complaint for the recovery of personal property there may be properly pleaded a counterclaim or cross-complaint founded upon damage to real property. It is not necessary here to attempt a full definition of the word “transaction” as used in our code, although there is much authority to support the definition given in Abbott’s Law Dictionary (vol. 2, p. 590), which is as follows: “The term ‘transaction’ in a statute limiting counterclaims to demands arising out of the same transaction, intends some commercial or business negotiation, and not a wrong of violence or fraud.” But it is not necessary for us to go that far in this ease. In an action founded on tort the facts might perhaps be of such peculiar character that a counterclaim or cross-complaint would lie on the theory that the alleged tort was a “transaction” within the meaning of the code. There is not much authority on the subject to be found in the decisions of this court, although