Brannan v. Paty

Boss, J.: This case presents an appeal from a judgment dismissing the action, and the determination of the appeal depends on the question whether the answer to the amended complaint contains a counterclaim. On both sides, the pleadings contain a mass of inappropriate matter—matter of evidence and matter which is neither of evidence nor of pleading. The main purpose of the action, however, seems to have been to have the plaintiff’s alleged title to certain real property quieted. If the averments of the amended complaint were true, the appropriate relief would have been a decree to that effect, and not one to compel the execution of a deed or deeds on the part of the defendants, as the plaintiff’s prayer also asked, might be required. The answer consisted of various denials of matters alleged in the complaint, and by way of “further answering,” and “for a further and separate defense,” set up matters which, if true, might have defeated the plaintiff’s action, and which, if properly pleaded, might have entitled the defendants to affirmative relief. But all of those matters, so far as they have any place in the pleadings at all, appear to have been pleaded in defense of the plaintiff’s cause of action, and not otherwise. In Doyle v. Franklin, 40 Cal. 110, the Court said: “ Where matters which are proper matters of defense are pleaded as such, we are clear that they should be regarded only as such, notwithstanding a prayer for affirmative relief at the conclusion of the answer. The matters of the cause of complaint must be separately stated as a cause of action against the plaintiff, and not as a defense to the plaintiff’s cause of action.” In the case of The Equitable Life Assurance Society v. Cuyler, 75 N. Y. 514, in which the defendant, after making certain denials, set up in his answer, “ for a second and further defense,” certain matters which it was contended entitled him to affirmative relief, the Court of Appeals of New York said: “As a distinction exists between a defense and a counterclaim, when the defense is intended . as a counterclaim it should be expressly stated in the answer, [332]so as to advise the opposite party; and in the absence of such an allegation, especially when the party defines and characterizes his answer as a defense, and it is uncertain whether a counterclaim is intended, such party is not in a position to insist that he has actually set up a counterclaim, and the answer should be construed and considered as a defense.”

It is sometimes a difficult matter to draw the line between a counterclaim and a defense, and for that very reason a rule ought to be declared which will, in the future, prevent any conflict in the decisions on that subject, which might otherwise occur. We find such a rule laid down by the Supreme Court of Wisconsin, in the ease of Stowell v. Eldred, 39 Wis. 630, which, with the language in which it is declared, we adopt as correct: “On former occasions this Court has had under consideration answers containing averments of fact so pleaded that it was doubtful whether counterclaims were predicated upon them, or whether they were alleged merely as defenses, and by argument and the application of various tests, the Court has determined the character of these pleadings. Should it be asserted that there is an inconsistency in those decisions, we are not prepared to dispute the assertion. The rule on this subject should be certain and uniform. In order that it may be so in the future, we take this occasion to say that hereafter no averment in an answer will be held to constitute a counterclaim, unless it is so denominated and the appropriate relief prayed. Wanting these requisites, the pleading will be held to be a defense only. It is so easy to commence a counterclaim by denominating it a counterclaim, and to close it with a demand for relief, that it is not unreasonable, and does no violence to the spirit of the Code, to require the pleader to do so.”