Pennington v. Van

MORIARTY, Circuit Judge. The plaintiff, who is the respondent herein, began this action for the purpose of securing a decree, quieting title to certain real estate situate in Ziebach county, S'. D. The complaint is in the form usually followed in prosecuting actions quieting title. To this complaint the defendant, appellant herein, interposed an answer, denying the allegations of the complaint, in so far as they alleged that the plaintiff’s title was paramount to the claims of the defendant to an interest in the land. This answer further alleges that the defendant’s interest in the land in controversy arose from the provisions of a certain written contract entered into between the defendant and one D. E. Pennington, under whom the plaintiff claims title to the land. And the defendant says that, by the terms of said contract, the said D. E. Pennington agreed to- sell the said land to the defendant, and the defendant agreed to buy said land from said D'. E. Pennington, at the agreed purchase price of $4,800, to be paid as follows: $200 at the time of executing the contract; $200 on the first day of March, 1920, $700 on or before the first day of October, 1920; $700 on or before the first day of October, 1921; $700 on or before the first day of October, 1922; and $3,400 on or before the first day of October 1923 — the defendant to have possession of the land on and after O’ctober 1, 1920. And the defendant further says that he paid the sum of $200 at the time the said contract was executed, the sum of $200 on March 1, 1920, and the sum of $700 on October 1, 1920, as provided in said contract. Ajnd he says that he retained possession of the land in controversy until the 1st day of March, 1922, when [279] the aforesaid D. E. Pennington, without defendant’s consent, took possession of the premises, and that since said first day of March, 1922, defendant has at all times been denied the use and possession of said land. And, as a counterclaim based upon these allegations, defendant demands judgment against the plaintiff for the return of the sum of $1,100, paid by him upon the aforesaid contract, with interest and costs. To this counterclaim of the defendant the plaintiff interposed a reply consisting of a general denial, coupled with an allegation that the aforesaid D. E. Pennington repossessed and re-entered the premises involved in this action, with the knowledge, consent, and authority of the defendant. Upon the issues so joined the case went to trial at the April. 1923, term of the circuit court of Ziebach county. Each of the parties submitted evidence and rested, and the case was taken under advisement by the court, and it was agreed that briefs should be presented. Thereafter, and on the 9th day of June, 1923, a motion was made by the plaintiff to be allowed to dismiss without prejudice. This motion w^s heard on June 22, 1923, and at that time the defendant presented an affidavit in opposition to the motion. In this affidavit defendant sets forth that his answer in the case contains a counterclaim, to which the plaintiff has replied, that under such circumstances the plaintiff has no right to dismiss, and that the defendant would be prejudiced by the granting of the motion. The trial court granted the motion and entered an order dismissing the action without prejudice. Within the time allowed by statute the defendant perfected his appeal from the above-mentioned order, and he will hereafter be referred to as the appellant herein. In his assignments of error, the appellant sets forth several reasons which he contends show that the order appealed from is manifestly prejudicial to the substantial rights of said appellant. Appellant’s counsel have cited several decisions of this court as supporting their contention that the trial court abused its discretion in granting the motion to dismiss, but in our opinion the cases cited do not present facts similar to those presented in the case at bar. [280] It will be noted that, while the appellant in his so-called counterclaim alleges the payment of $1,100 by him ,to- apply upon the land contract, he fails to allege that he paid the $700 due under the terms of the contract on October 1, 1921, he therefore admits that he was in default on March 1, 1922, the date upon which he alleges D. E. Pennington re-entered the land. In this alleged counterclaim of appellant there is no allegation that the contract contains any provision for the return to- him of any payment made upon the contract, nor is there any allegation that the payments made by him exceeded the value of his use and occupation of the premises. It is very doubtful whether the counterclaim as pleaded would have stood the test of a demurrer. But no demurrer was interposed, and appellant was allowed to- present his evidence in support of his claim. There is no contention that the learned trial court erred in excluding any evidence sought to be introduced by appellant. It follows, therefore, that at the time the motion ¡to dismiss was granted, the trial court had before it all appellant’s evidence in support of his alleged counterclaim. Such evidence is not before this court on this appeal. Appellant is asking this court, with none of the evidence before it, to hold that the trial court, with all the evidence before it, abused its discretion in allowing respondent to dismiss his action. It will be observed that nowhere in his showing does appellant allege that he presented to the trial court competent evidence sufficient to support his counterclaim. Under such- circumstances this court- cannot say that the learned trial court abused its- discretion or prejudiced any of appellant’s rights by'the entry of the order appealed from. The order appealed from, is affirmed. -MORIARTY, Circuit Judge, sitting in lieu of CAMPBELL, J., disqualified.