Fergus Printing and Publishing Co. v. Board of County Commissioners

MITCHELL, J. The plaintiff demurred to that part of defendant’s answer set up by way of counterclaim. Subsequently, the cause went to trial upon the issues of fact. It appears from the record that on the trial defendant’s counterclaim was withdrawn by stipulation of the parties. At a subsequent stage of the trial, “defendant asked leave to withdraw its stipulation that the counterclaim be stricken out, whereupon plaintiff renewed its motion that the counterclaim be stricken out. Motion granted.” After the close of the trial the court filed its findings in favor of the plaintiff upon its cause of action, and at the same time filed its order sustaining the demurrer to defendant’s counterclaim. Defendant then made a motion for a new trial, and, from an order denying this motion, defendant appealed. My own opinion is that no question as to the counterclaim can be considered on this appeal; that upon this record the trial' court must be deemed to have disposed of the counterclaim by the order sustaining plaintiff’s demurrer, and the correctness of that order cannot be raised by a motion for a new trial. Dodge v. Bell, 37 Minn. 382, 31 N. W. 739. My brethren, while not assenting to this proposition, are of the opinion that the so-called “counterclaim” was properly stricken out, for the reason that it neither arose out of the transaction set forth in the complaint, nor is alleged to have existed at the commencement of the action. [214] The only other question in the case is, what compensation was plaintiff entitled to, in the absence of any express contract, for publishing the “forfeited tax list,” pursuant to the provisions of Laws 1893, c. 150? Defendant contends that it is governed by G. S. 1878, c. 11, § 110 (G. S. 1894, § 1028),—that is, 12 cents for each description,—while plaintiff contends that it is governed by G. S. 1878, c. 70, § 31 (G. S. 1894, § 5581),—that is, 75 cents per folio for the first insertion, and 35 cents per folio for the second. We agree with the trial judge, and for substantially the reason assigned by him, that G. S. 1878, c. 11, § 110 (G. S. 1894, § 1628), is inapplicable. It follows either that G. S. 1878, c. 70, § 31 (G. S. 1894, § 5581), is applicable, or, if not, that plaintiff is entitled to the reasonable value of the work. It is not necessary to decide which is the rule, for the undisputed evidence is that the publication was reasonably worth the rates fixed by G. S. 1878, c. 70, § 31 (G. S. 1894, § 5581). Order affirmed.