Dice v. Morris

Frazer, C. J.: The first question presented by the appellant is, whether the court below erred in overruling the motion made by him to strike out the cross complaint of Thompson. The majority of the court are of opinion that there was no error—that the matters averred therein and the relief sought against Thompson were so intimately connected with the subject of the principal suit, that the whole might properly be litigated together, under the code. I entertain some doubt upon the subject. Was there error in overruling the demurrer to the cross complaint? We all agree that the facts alleged were sufficient to constitute a cause of action against Dice. The mistake sought to be corrected was of a deed, which did not, as is alleged, express what the parties intended to express. Relief is not sought, as the appellant seems to suppose, from a mistake of law. The pleading is awkwardly framed, containing a-very unnecessary narrative of evidence which ought to have been omitted, but the fact distinctly appears that, by mistake, the deed to Dice conveys a greater estate than was actually purchased by him or intended to be conveyed. ■ If the majority of the court is correct in the opinion already expressed, that the cross complaint was properly retained,in-the record, it would follow that Dice was not [293] entitled to a separate trial of the issues upon it, and that there was no error in overruling his application therefor. 21 F, Davidson■, for appellant. A A. Rice, M. M. Milford, and J. McCabe, for appellees. There was no error in striking out the first paragraph of the appellant’s answer to the cross complaint. It was a denial in argumentative form, and any evidence admissible under it was equally proper under the second paragraph. It is urged that the whole complaint was insufficient in its averments to make a cause of action against the appellant. ¥e are not of that opinion. ' Some of the paragraphs were good beyond doubt, and perhaps all of them. But all must be bad to justify reversal, where there was no demurrer. This court cannot, in this case, reverse the judgment upon the evidence. Indeed, we would hardly be prepared to say that the preponderance is not in favor of the .verdict. But it is enough that it was contradictory, and that this is not the tribunal to pass upon the credibility of witnesses. Affirmed, with costs.