Farmer v. Dakin

Bruce, J. (after stating the facts as above.) The judgment of the district court must be set aside. Both the demurrer to the answer and the motion to exclude all evidence thereunder should have been sustained. The answer did not deny the allegations of the complaint, or even ask for an affirmative judgment. The defendant, in fact, admitted the obligation of the note upon the trial. The answer, or whatever it may be called, was clearly worthless, either as an answer or as a counterclaim. The principal action was in contract and upon a promissory note. The defendant, by his alleged counterclaim, either attempted to set up a cross action in ejectment, forcible detainer, trespass, or, possibly, if the house was not attached to the freehold and was personal property, conversion. The land being in Minnesota, it is difficult to see how an action in ejectment, trespass to real estate, or forcible entry and detainer, would lie, as such actions are local in their nature. McLeod v. Connecticut & P. River R. Co. 58 Vt. 727, 6 Atl. 648 ; Mosby v. Gisborn, 17 Utah, 257, 54 Pac. 121; 5 Words & Phrases, 4202. Even if the house were considered personal property, and there is nothing in the pleading or the record to indicate this, there can be no 456 pretense that, the action arose ont of tbe “contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim,” or that it was in any way “connected with the subject of the action.” This was, however, necessary to the counterclaim. See § 7449, Compiled Laws of 1913; Roney v. Halvorsen Co. 29 N. D. 13, 149 N. W. 688. The judgment of the District Court is reversed, and the cause is remanded with directions to enter judgment in favor of the plaintiff and against the defendant for the sum of $110, with interest at 8 per cent per annum, from the 11th day of June, 1912, to the 10th day of March, 1913, and interest thereafter at the rate of 7 per cent per annum; together with the costs of said justice court and of said appeal to the district court and of the trial thereon in said court, with interest thereon at the rate of 7 per cent.