White v. Smith , 133 Wis. 641 ( 1907 )

SibbecKER, J.

It is apparent from the pleadings that plaintiff and defendants allege the same cause of action, respectively, in the amended complaint, and in the answer by way of counterclaim, and that the relief demanded by them is identical. The controversy arises as to defendants’ right to insist upon the cause of action by way of counterclaim first pleaded by them in their answers to the original complaint and before plaintiff amended her 'complaint to conform to the state of facts alleged in the counterclaims. Plaintiff’s right to amend the complaint is not questioned. Having availed herself of this right, the amended complaint becomes the complaint in the action. Defendants served no answers aside from the ones served by them to the original complaint. This, therefore, stands as the answer to the amended complaint. Yates v. French, 25 Wis. 661; Ellison v. Straw, 119 Wis. 502, 97 N. W. 168.

Plaintiff demurs to tire counterclaims here in question upon the ground that the facts alleged do- not constitute a cause of action and that the facts alleged are not pleadable as a counterclaim. It has been the rule from an early date that the counterclaim contemplated by the Code “must be something which resists or modifies the plaintiff’s claim. It is in the nature of a cross-bill in equity. . . . To be available to a -party, it must afford to him protection in some way against the plaintiff’s demand for judgment.” Heckman v. Swartz, 55 Wis. 173, 12 N. W. 439; Dietrich v. Koch, 35 Wis. 618. It has been held, “in pursuance of former New York decisions inhering in the statute when adopted by us, that a demand may be pleaded as counterclaim only when, if established, it would in some way qualify or defeat the judgment to which the plaintiff would otherwise be entitled.” Kaukauna E. L. Co. v. Kaukauna, 114 Wis. 327, 89 N. W. 542; Weatherby v. Meiklejohn, 56 Wis. 73, 13 N. W. 697; Telulah P. Co. v. Patten P. Co. 132 Wis. 425, 112 N. W. 522. Since the relief demanded and which can be awarded upon the counterclaims is identical with that which is demanded and must be granted upon the complaint, it must follow, under the rule of the above cases, that the allegations of the counterclaims do not constitute counterclaims as contemplated by the Code.

It is urged that the counterclaims should stand because plaintiff may refuse to prosecute the complaint to judgment and thus deprive the defendants of the relief they seek in the action. Should plaintiff attempt to dismiss it, it would still rest with the court to determine whether she would be permitted to do so unconditionally, and whether upon defendants’ application their counterclaims should then be reinstated. This, however, need not be determined until such a situation actually arises. Under the rules applicable to tire actual state of the pleadings now before us, we are led to the conclusion that the alleged counterclaims state no grounds for relief which can in any way resist, modify, or protect defendants against the judgment to which plaintiff is entitled upon the cause of action alleged by her. The trial court properly sustained the demurrer to the counterclaims involved on this appeal.

By the Court. — The orders appealed from are affirmed.