Quinn v. Smith

By the Court, Wallace, C. J.:

1. The answer of the defendant, in so far as it attempted to set up a counter claim, was as follows :

“ Defendants, for further and separate defense herein, aver that plaintiff ought not to have the sum sued for, or any other sum of money from them, for they aver that plaintiff is, and was, at-and before the commencement of this suit, largely and justly indebted to defendants in this suit, much more than the sum sued for, to wit: the sum of twenty-eight hundred dollars.”

The demurrer of the plaintiff to this part of the answer was properly sustained. A counter claim should contain all the substantive averments necessary in a complaint, based upon the same cause of action; and, tested by this rule, the pleading is insufficient.

2. A further counter claim against the plaintiff was set up in the answer of the defendants, in substance, for the value of the use and occupation of certain premises, which the plaintiff held of one Jordon. Jordon’s title accrued in 1869, by deed from one Grant to him; Grant was indebted to the Craners, who, in 1870, commenced an action, and in May of that year obtained a judgment against him. Upon execution sale, under this judgment, the defendants purchased the interest of Grant, the alleged fraudulent debtor of the Craners, and in December, 1870, obtained a sheriff’s deed to the premises, pursuant to the execution sale. It is clear that the bona fides of the antecedent conveyance from Grant to Jordon cannot be collaterally inquired into in this action, nor the value of the use and occupation of the premises be recovered from the plaintiff, who entered and held under Jordon, and in hostility to the alleged title of the defendants. The demurrer to this portion of the answer was, therefore, properly sustained.

3. These views dispose of the “errors of law” relied upon, and the motion for a new trial was properly denied, because the statement contains no specifications sufficient to support the motion. The only specifications are: First, “that said judgment is against law;” second, “said judgment is contrary to the evidence in this.” (Martin v. Mat-field, ante, p. 42.)

Judgment and order denying a new trial affirmed. Remittitur forthwith.

Mr. Justice Niles did not express an opinion.