Buecher v. Casteen

41 Kan. 141

Opinion

Opinion by

Clogston, C.:

But one question is presented by the record in this action: Did the answer of the defendant set-out such a counterclaim and demand for relief that he was entitled to be heard thereon after the plaintiffs dismissed their cause of action ? The bill of exceptions shows that the mayor and city authorities answered in said action. Their answer is not set out, and we are unable to say what that answer was. There may have been sufficient allegations therein, in connection with defendant’s answer, to raise an issue of fact; and if it did, the dismissing of the action by the plaintiffs in error would not affect such issue. The defendant was claiming, affirmative relief; he was asking for an accounting between himself and the city of Meade Center, and the conveyance of the land claimed by the plaintiffs in error to himself. We think this was sufficient demand, upon which the court properly heard ,and determined the controversy set up in the defendant’s answer.

We therefore recommend that the judgment of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.