Stolze v. Torrison

Cassoday, C. J. The demurrer of the plaintiff to the-counterclaim alleged in the separate answer of the defendant Torrison assigns all the sis grounds mentioned in sec. 2658, Stats. 1898, but the plaintiff only relies upon the last, which is that “the cause of action stated [in the counterclaim] is-not pleadable as a counterclaim to the action.” Whether it is or not is the important question to be considered on this ap [321] peal. As stated by counsel for the defendant, the statute provides that, in addition to denials, the answer may contain “a statement of any new matter constituting a defense or counterclaim.” Sec. 2655, Stats. 1898. We are not here called upon to consider any new matter not constituting a counterclaim, even though it might in whole or in part constitute a defense. Weatherby v. Meiklejohn, 56 Wis. 73, 13 N. W. 697. As indicated, we are here only concerned as to whether the facts alleged in the answer are pleadable as a counterclaim. That depends upon the meaning of the statute, which declares: “The counterclaim . . . must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action and arising out of . . . (1) a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim or connected with the subject of the action.” Sec. 2656, Stats. 1898. It is conceded that the other provisions of the section have no application to the case. Counsel contend, in effect, that, as the action is against the defendants as tort feasors, a judgment might be taken in favor of the plaintiff and against any one of the defendants; and hence that the counterclaim in favor of Torrison is one existing in favor of him “and against the plaintiff between whom a several judgment might be had in the action,” and to that extent satisfies the provisions of the statute quoted. For the purposes of this appeal we will assume such contention to be correct. Ellis v. Esson, 50 Wis. 138, 6 N. W. 518; Pogel v. Meilke, 60 Wis. 248, 18 N. W. 927; Bishop v. McGillis, 82 Wis. 120, 51 N. W. 1075. 2. It is urged that the counterclaim alleged arose out of the “transaction set forth in the complaint as the foundation of the plaintiff’s claim.” In support of such claim counsel cite the recent ease in this court wherein it was held that the word “transaction,” as used in that section, was “broad enough to include the entire, continuous, physical encounter” [322] between the two combatants. Gutzman v. Clancy, 114 Wis. 589, 593—595, 90 N. W. 1081, and cases there cited. That is an extreme case, but it does hot meet the question here presented. As indicated, the “transaction set forth in the complaint as the foundation of the plaintiffs claim” was the wrongful and unlawful breaking and entering the close of which the plaintiff was at the time in the quiet and peaceable possession, and malicious prosecution and conspiracy in support of such conduct. The equitable counterclaim sought to be interposed is to establish the title of Torrison to the locus in quo under a tax deed and a subsequent conveyance and the statutes of limitation, mentioned in the foregoing statement, and to have the plaintiff’s assertion of title 'adjudged to be unfounded. It is very obvious that such equitable counterclaim did not arise out of .the transaction set forth in the complaint as the foundation of the plaintiff’s claim. On the contrary, it arose entirely independent and outside of that transaction, and the trespasses of the defendants alleged are sought to be justified by virtue of it. Nor is it legally “connected with the subject of the action” set forth in the complaint. It did not arise out of the torts or trespasses alleged in the complaint, nor is it legally connected with such torts or trespasses. '“The subject of the oction” is not the land, nor the title to the land, but the torts alleged. Bazemore v. Bridgers, 105 N. C. 191, 10 S. E. 888. The peaceable possession of the plaintiff was sufficient without actual title to support trespass vi et armis. McNarra v. C. & N. W. R. Co. 41 Wis. 69; Carl v. S. & F. du L. R. Co. 46 Wis. 625, 1 N. W. 295; Gerhard v. Swaty, 57 Wis. 24, 14 N. W. 851; Field v. Apple River L. D. Co. 67 Wis. 569, 31 N. W. 17; Moore v. C., M. & St. P. R. Co. 78 Wis. 120, 47 N. W. 273; Stahl v. Grover, 80 Wis. 650, 50 N. W. 589. Besides, malicious prosecution might be maintained without such possession. “A counterclaim must be a claim which, if established, will defeat, or in some way qualify, the judgment to which plaint [323] iff is otherwise entitled.” Dietrich v. Koch, 35 Wis. 618; Moore v. Smead, 89 Wis. 569, 62 N. W. 426; Appleton Mfg. Co. v. Fox River P. Co. 111 Wis. 469, 87 N. W. 453; Kaukauna E. L. Co. v. Kaukauna, 114 Wis. 343, 89 N. W. 542. This court has held that, where the complaint stated “a cause of action in trespass quare clausum, with allegations of the injury, destruction, and carrying away of personal property in aggravation of damages,” the defendant could not interpose “an equitable counterclaim, as owner in common with plaintiff of the personal property injured or taken, to have the plaintiff required to account for the use of defendants’ share of the property, and to have the property sold, and the proceeds divided between the parties; such a claim not arising out of the trespass complained of, nor being connected with the subject of the action.” Tallman v. Barnes, 54 Wis. 181, 11 N. W. 478. See, also, Scheunert v. Kaehler, 23 Wis. 523; Mulberger v. Koenig, 62 Wis. 558, 562-564, 22 N. W. 745. In one of these cases it was said by the late Justice Taylor: “The subject of the action is nothing more or less than the facts constituting the plaintiff’s cause of action. ... A counterclaim, in order to be allowed as such, under this last clause of the statute, must be connected with the facts constituting the plaintiff’s cause of action.” Mulberger v. Koenig, supra. This court has recently held: “In an action of ejectment neither the running of the statute of limitations nor facts constituting an estoppel in pais can properly be pleaded as a counterclaim, . . . each being available as a legal defense.” Appleton Mfg. Co. v. Fox River P. Co. 111 Wis. 465, 87 N. W. 453. Numerous eases are cited by the respective counsel, as will be observed by consulting their briefs. While these cases have more or less bearing upon the question presented, yet, after all, the case necessarily turns upon the wording of the statute, which is plain. Whatever cause of action Torrison [324] may Rave against the plaintiff, yet the one alleged, if established, would in no way qualify or defeat the judgment te which, the plaintiff might otherwise be entitled. By the Court. — The order of the circuit court is reversed,, and the cause is remanded, with direction to sustain the demurrer to the counterclaim, and for further proceedings according to law.