Gomez v. Ulibarri

174 P. 737, 24 N.M. 562

• Court: New Mexico Supreme Court
• Decided: April 25, 1918
• Docket: No. 2110
• Status: Published

Opinion

OPINION OP THE COURT.

HANNA, C. J.

[1] (after stating the facts as above). Error is first assigned in sustaining appellee’s demurrer to appellant’s answer, it being contended by appellant that under our statutes (sections 4115, 4116, Code 1915) a party is permitted a defense or counterclaim pleaded as new matter when stated in ordinary or concise language, without repetition, and that the sustaining of the demurrer was in effect a denial of the right of appellant to maintain the counterclaim set up in his pleading. There can be no question as to the right of the appellant to set up a counterclaim, which the statutes in question clearly confer. This court passed upon the question in the case of La Mesa Community Ditch v. Appelzoeller, 19 N. M. 75, 140 Pac. 1051. Our statute is evidently taken from a Missouri statute, which was construed in the ease of Crane v. Murray, 106 Mo. App. 697, 80 S. W. 280, in which case the Missouri court held that:

“When plaintiff’s claim is based on contract, a counterclaim under the first clause must arise out of the subject-matter of plaintiff’s action or be connected therewith or related thereto; and' under the second clause it must be on contract whether it be founded on that declared on by the plaintiff or any other, however disconnected or independent.”

An examination of tbe record discloses that tbe demurrer was sustained only upon tbe ground that Dolores Ulibarri de Gomez was a necessary party to tbe complete determination of said cause. We tbink it is therefore clear that tbe appellant was not denied any right to counterclaim, tbe court simply holding that his counterclaim had made tbe sister a necessary party, and for this reason the first assignment of error is not well taken.

[2] A more serious question is. presented, however, by the second assignment of error, which questions the intervenable interest of the sister. In this connection it must be borne in mind that when the petition in intervention was filed, the answer of appellant, at least so far as his counterclaim or cross-complaint is concerned, had ceased to be a factor in the case. And the issue was simply as to the alleged stated account and the general denial contained in appellant’s answer. In this issue the intervener had no interest direct or consequential, and showed no such interest in her petition, and appellant’s objection to the filing of the petition in intervention should have been sustained. We held in the case of First National Bank v. Clark, 21 N. M. 151, 153 Pac. 69, L. R. A. 1916C, 633, that:

“In order to be entitled to intervene under section 4296, Code 1915, it is necessary that the interest of th© inter-vener in the matter in litigation be direct and' of a substantial nature, not indirect, inconsequential or contingent.”

For the reasons stated, the judgment is reversed, and the cause remanded for a new trial; and it is so ordered.

Egberts and Parker, J.J., concur.