Bertschy v. McLeod , 32 Wis. 205 ( 1873 )

LyoN, J.

The following propositions must, we think, be conceded: 1st. At the common law, a plaintiff bad the absolute right to discontinue bis action before or after issue joined, and without leave of court. 2nd. In suits in equity, under the former practice, the plaintiff might, in like manner, dismiss his bill, but such dismissal did not carry with it a cross bill interposed by the defendant. 2 Barb. Ch. Pr., 128 and cases cited. 3d. The right of discontinuance is not affected by the code, but remains the same, both in legal and equitable actions, as under the former practice.

By the common law, neither of the counterclaims here interposed could be pleaded in the action. The one which demands a reformation of the written agreement could only be made available by a suit in equity; and the other, which demands judgment for damages for the alleged violation of his contract by the plaintiff, in excess of the plaintiff’s demand, could only be enforced by a separate action. Of course, the subject matter of the latter counterclaim might be pleaded as a defense to the action, either in whole or in part; but the defendant could not in that case recover judgment for any excess of damages sustained by him, over and above the damages sustained by the plaintiff. In brief, at the common law the defendant could only plead such matter in defense, and could not obtain in the action equitable relief, or recover a judgment for damages against the plaintiff, as he now may under proper pleadings and proofs. Waterman on Set-Off, Recoupment, etc., 471; 1 Chitty’s Pl., 569; 2 Black. Com. (Cooley’s ed.), 305, note 19. Hence, all there was of the action at the common law was the cause of action as stated in the declaration, and the defense pleaded thereto by the defendant; and that was all which the plaintiff had an absolute right to discontinue. Such right of discontinuance still remains under the present practice, and, to the extent above indicated, has been rightfully exercised in this case by the plaintiff. The plaintiff’s cause of action, and all defenses pleaded thereto which could have been pleaded as sucb under tbe former practice, have disappeared from the cause by force of the order of discontinuance.

But we are unable to perceive how it can be held, upon any logical principle, that such discontinuance necessarily carried with it those proceedings of the defendant which the code permits him to institute in the action, or rather to engraft upon it, but which are, in substance and effect, actions brought by the defendant against the plaintiff. Had these proceedings been under the common law practice, as already observed, the counterclaims interposed in this action would have been asserted in two separate and distinct actions, one at law and the other in equity, in both of which the position of the parties would be the reverse of their position in the present action. In such case, surely the discontinuance by the plaintiff of the action brought by him would not -work a discontinuance of such other actions brought against him. Why should the plaintiff’s discontinuance of his action lead to that result under the present practice? The learned counsel for the plaintiff have failed to answer this question satisfactorily, and we freely confess our inability to do so.

The cases decided by the various courts of New York upon the su eject of the right of discontinuance under the code are conflicting, and quite unsatisfactory ; and we can get but little aid from them in determining the question under consideration.

It may be stated, in support of the views above expressed, that this right or practice of counterclaim is borrowed from the civil law, where it is designated “ demand in reconvention and the Louisiana cases referred to by the learned counsel for the defendant clearly show that, by the rules of the civil law, a discontinuance of the action by the plaintiff is ineffectual to put a defendant out of court who has interposed a “ demand in reconvention.”

If the foregoing views are correct, it necessarily follows that the discontinuance of his action by the plaintiff left the issues made by tbe counterclaims and tbe reply thereto, pending in court and for trial, and tbat tbe court ruled correctly in refusing to strike tbe cause from tbe calendar. If application be made for tbat purpose, tbe county court should, under the special circumstances of tbe case, permit tbe plaintiff to vacate tbe order of discontinuance so entered by him, to the end tbat the whole controversy between the parties may be adjudicated in this action.

As to tbe point that the defendant could not properly disregard tbe order of discontinuance and' notice tbe case for trial, but tbat be should first have procured that order to be vacated, we think tbat bad tbe order been made, although erroneously, by the court or some judicial officer having power to make such orders, the point would have been well taken. The case of Jones v. Dow, 15 Wis., 582, so holds. But where a mere sidebar order, or order of course, is improperly entered by an attorney, the other party may disregard it.

By the Court. — The order appealed from is affirmed.