Town v. Bringolf , 47 Iowa 133 ( 1877 )

Day, Ch. J.

i. pleading: taeilmeiitf Plaintiff insists that he was entitled to judgment under section 2635 of the Code, which provides: “The defendant shall, in an action commenced .in a court of record, demur, answer, or do both, as to the original petition before noon of the second day of the term.” It is claimed that here there was no response, neither 'demurrer nor answer, as to the original petition. Section 2655 of the Code provides that the answer shall contain a statement of any new matter constituting a counter claim. _ A counter claim is thus, by express provision of statute, made an answer to the original petition. Section 3017 of the Code provides: “The fact stated as a cause of attachment shall not be contested in the action by a mere defense. The defendant’s remedy shall be on the bond, but he may, in his discretion, sue thereon by way of counter claim, and in such case shall recover damages as in an original action on such bond.” "We have thus the provision that a counter claim is an answer, and that a suit for damages on the attachment bond, by the defendant in the main action, is a counter claim. These two provisions are conclusive that defendants had not failed to answer as to the original petition, when judgment was asked against them. See also Branch of the State Bank of Iowa City v. Morris, 13 Iowa, 136, construing the corresponding section, 3238, of the Revision. It may be, as appellant insists, that this counter claim was not interposed in good faith. But we know of no authority for disregarding an answer which the statute authorizes, even if it be interposed for no higher motive than to delay judgment. There is no means of determining that the defense is frivolous but by a trial. The judgment is

Affirmed.