Langford v. Langford

HARRISON, J.

The plaintiff commenced this action to recover from the defendant certain moneys alleged to have been paid by him at her request, and on December 22, 1898, the defendant filed an answer thereto. March 13, 1899, she filed an amended answer, setting forth therein a counterclaim against the plaintiff, together with a cross-complaint, in which the allegations are identical with those of the counterclaim. The cause came on' for trial April 10, 1899, before the court sitting with a jury. The plaintiff had not answered the cross-complaint, and on that day the clerk entered his default thereto. After the jury had been impaneled, the plaintiff offered testimony in support of the complaint, to which the defendant objected, on the ground that there had been no appearance on the part of the plaintiff to the cross-complaint. This objection was overruled by the court and an exception noted. At the close of the plaintiff’s case, and before the defendant had offered any evidence, the court granted an application of the plaintiff to set aside his default to the cross-complaint. The trial thereupon proceeded, and upon the submission of the cause to the jury it rendered a verdict in favor of the plaintiff. From the judgment entered thereon the defendant has appealed. No motion for a new trial was made, but the appeal is presented upon the judgment-roll with a bill of exceptions, and the grounds urged in support thereof are, that the court erred in overruling the objection to receiving evidence in support of the plaintiff’s claim and in setting aside his default.

1. The failure of the plaintiff to answer the cross-complaint did not deprive him of the right to establish the cause of action set forth in his complaint. A verdict upon the cross-complaint in favor of the defendant would not,

ipso facto,

extinguish his claim against her or defeat his right to have the issue thereon determined. Each of the parties was

[509]

seeking a money judgment against the other, and if the defendant should establish her claim upon the cross-complaint the court would enter judgment in favor of the one who should establish the greater claim, but only for the difference between the two.

2. A motion to set aside a default rests so largely in the discretion of the trial court that its action thereon will very rarely be disturbed upon an appeal. (See