Sample v. Griffith

Stockton, J. The error assigned is, that the district court sustained the demurrer to the whole of defendant’s answer. "We think this assignment of error is well taken, and that the district court erred in rendering judgment against defendant, as for want of an answer. There was, to say the least of it, a general denial of any indebtedness on the part of defendant to plaintiff, in the manner and form charged in the petition, and as a demurrer did not apply to this part of the answer, an issue was thereby raised, which precluded the possibility of any judgment by default against defendant. The second head of defendant’s answer, is a denial of the facts alleged by plaintiff, as a cause why an attachment ought to issue against defendant’s property, with an averment that defendant had suffered damages to the amount of one thousand dollars, by the wrongful suing out of the writ, which damages he claims should be allowed him, by way of recoupment to plaintiff’s claim. This part of the answer is so inartificially drawn, that it is difficult to determine whether it is intended to be understood as a plea of set-off, or whether the matters alleged are merely intended to add weight to the prayer with which the plea concludes, that the writ of attachment be dissolved, and that the property seized be restored to defendant. This court has heretofore decided that, in a case like the present, an issue cannot be made on the facts alleged in the plaintiff’s [379] affidavit for an attachment. Sackett, Belcher & Co., v. Partridge & Cook, & Iowa, 116. Eor this reason, and for the further reason, that the facts relied upon by defendant, are not stated with sufficient certainty and distinctness to constitute a plea of set-off, the demurrer to this part of the answer, was properly sustained. We cannot say that the matters stated in the third division of the answer, if properly pleaded and set forth, would not amount to a sufficient defence to the plaintiff’s action. It is not possible, however, for us to determine, from the manner in which they are pleaded, whether defendant designed to aver them by way of set-off, or cross action to the plaintiff’s claim, or to show that the notes sued on, were void for fraud practiced by plaintiff in obtaining them, or that the consideration on which they were founded, had wholly failed. There is such a want of point and directness in the pleading, and such a confusion of matters which should have been averred in distinct pleas, and under distinct heads of defence, that we think the district court was justified in sustaining the demurrer to this part of the answer. The defendant, by his last special plea or answer, alleges certain matters growing out of the partnership of plaintiff and defendant with one II. C. Tatum, in the ownership of certain lands, and in the erection of a saw-mill thereon, and claims that there are certain large amounts of money due to defendant, from plaintiff, from matters growing out of the said partnership, and for advances made by defendant in money, labor and materials, and for liabilities assumed by him, by reason of the said partnership. To this part of the answer, we think, the demurrer was properly sustained. It was not competent for defendant, to plead by way of set-off or cross-action, any matters growing out of this unsettled partnership transaction with plaintiff and Tatum, in the ownership of the land, and in the erection and carrying on of the saw mill. These matters are more properly the subject of a suit in equity, which, it appears, by the answer, defendant has com [380] menced, for the settlement of the affair of the partnership If any amount had been found to be due defendant from the plaintiff, either by the decree of the court, or the agreement of the parties, it would have been the subject of an action or set-off, but until it is so liquidated and ascertained, the remedy of defendant is in chancery, for what ever amount may be due him from his co-partners, or either of them, on the matters pleaded. For the error of the court in sustaining the demurrer to the whole of the answer, and rendering judgment against defendant by default, as for want of an answer, the judgment is reversed. Judgment reversed.