Akerly v. Vilas

21 Wis. 377

• Court: Wisconsin Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Downer, J.

When this case was before us on a previous appeal, we held that the only defense properly pleaded as a counter-claim, was that for breach of the covenants in the deed of Akerly and others to Vilas; and if there could have been any objection taken to that counterclaim by reason of its being against Mrs. Lord (who is not a party to the action) and the plaintiff jointly, that the plaintiff, by replying without raising the objection, waived it. On a motion for a rehearing it was urged that the plaintiff had also waived all objection to the other counter-claims by replying to them without raising any objection to their validity or sufficiency. Without deciding what would be the effect of a trial, without objection, of the issue on those counter-claims which on tbe former appeal we beld not authorized by the statute respecting counter-claims, we expressed tbe opinion that tbe circuit court, in its discretion, ought, if leave should be asked, to permit the reply to such counter-claims to be withdrawn, and a demurrer filed. The plaintiff moved for leave to withdraw the reply and to demur, not only to the counter-claims we held bad, but to that we held good; and this case is now here on an appeal from the order overruling the motion. The plaintiff ought to have confined his motion to the counter-claims held bad.

We are, however, now satisfied that there is no necessity for any amendment of the pleadings. The plaintiff can object to any evidence being given under the defective counter-claims at the trial, and thus obtain the same advantage he could have obtained by demurrer. But this right to object at the trial does not extend to the counter-claim on the covenants. As to waiving any defects for want of parties^ the same principles apply to counter-claims as to complaints; and the plaintiff, by replying to the counter-claim on contract, without raising the objection of want of parties, waived that objection, even if it could have been successfully taken by demurrer or the reply. On that counter-claim a several judgment might be rendered between the parties to the action, as the objection that Mrs. Lord was not a party was not taken before or by the reply ; and for that reason, that counter-claim is within the provisions of section 11, ch. 125, R. S. The claim for damages on the covenants is also within the statute (ch. 126, R. S.) respecting set-offs; and, independently of section eleven above cited, re' specting counter-claims, might be pleaded in the answer of the defendant as a set-off; and this might have been done even if the entire mortgage had been assigned, and the action to foreclose brought by the assignee. Section 2, ch. 154, Laws of 1859, provides that set-off shall be a species of counter-claim, and the same shall be governed by the rules of practice and pleadings applicable to counter-claims. Begard-ing tbe claim for damages for breach of tbe covenants as a set-off, it was rightly pleaded as a counter-claim. In any view we can take, then, the defendant has a right to have that claim adjudicated in this action. The circuit court rightly refused leave to withdraw the replication and demur to that counterclaim. And we think the order overruling the motion was appealable; though we have some doubts whether it would have been if the motion had been limited to the counter-claims held bad.

By the Oourt. — Order of the circuit court affirmed.