Guaranteed Investment Co. v. St. Croix Consolidated Copper Co.

Kbbwin, J. The first contention made by counsel for appellant is that the counterclaim was not proper, because if proven it would constitute a legal defense to the cause of action set out in the complaint, therefore the defendant cannot he permitted, by setting up such fact as a counterclaim, to change the nature of the trial só as to secure a trial before the court without a jury. Upon this point counsel relies upon the following cases: Appleton Mfg. Co. v. Fox River P. Co. 111 Wis. 465, 87 N. W. 453; Harley v. Harley, 140 Wis. 282, 122 N. W. 761; Page v. Kennan, 38 Wis. 320; Lawe v. Hyde, 39 Wis. 345; Pennoyer v. Allen, 51 Wis. 360, 8 N. W. 268; Brown v. Cohn, 88 Wis. 627, 60 N. W. 826. The contention of counsel for appellant under this head involves two propositions: (1) Whether the counterclaim states a good cause of action in equity; and (2) whether, if so, such cause of action is pleadable' as a counterclaim. If the cause of action alleged in the counterclaim constitutes a good legal defense and the defendant has a complete and adequate remedy at law, as efficient as in equity, his counterclaim cannot he sustained. In Appleton Mfg. Co. v. Fox River P. Co., supra, it was held that in ejectment neither the running of the statute of limitation nor facts constituting an estoppel in pais can prop [176] erly be pleaded as a counterclaim under sec. 3078, Stats. (1898), each, being'available as a legal defense. In Harley v. Harley, supra, the bolding was to the same effect, namely, that a legal defense is not pleadable as a counterclaim in an action of ejectment. In Page v. Kennan, supra, it was beld that the complaint under sec. 29, ch. 141, R. S. 1858, should state facts showing the nature and validity of defendant’s claim which constituted a cloud upon plaintiff’s title to the land in question, and the complaint was held bad on demurrer. In Lawe v. Hyde, supra, it was held that the defendant in ejectment cannot generally set up a counterclaim resting on legal title; but this case recognizes the general doctrine that an equitable defense may be made by counterclaim in a proper case. See 39 Wis. 354. In Pennoyer v. Allen, supra, it was held that equitable relief by injunction against bringing action was not proper, and that the counterclaim did not state an equitable defense; that the case made by the counterclaim was merely a defense at law. In Brown v. Cohn, supra, it was held that facts which merely constitute a legal defense are not the proper subjects of a counterclaim. In the instant case the facts pleaded show that defendant has an adequate remedy at law, hence it is not entitled to equitable relief. In a proper case an equitable defense may be made in an action of ejectment where the defense at law is not adequate and a good cause of action in equity is pleaded. Lombard v. Cowham, 34 Wis. 486; Lawe v. Hyde, 39 Wis. 345; Grignon v. Black, 76 Wis. 674, 45 N. W. 122, 938; Du Pont v. Davis, 35 Wis. 631; Cornelius v. Kessel, 58 Wis. 237, 16 N. W. 550; secs. 3078, 3186, Stats. The defendant having an adequate remedy at law, the demurrer should have been sustained. It is further insisted by counsel for appellant that the [177] court erred in awarding to the defendant in the judgment $10 costs of motion. In this- we think the appellant is right. This $10 costs was imposed solely as a condition of the plaintiff serving a reply to the counterclaim, hence no authority existed for taxing it as costs against the plaintiff on failure to reply. State ex rel. Rice v. Chittenden, 107 Wis. 354, 83 N. W. 635; Schroeder v. Richardson, 101 Wis. 529, 78 N. W. 178; Case v. Fuldner, 110 Wis. 568, 86 N. W. 163; Schmidt v. Joint School Dist. 146 Wis. 635, 132 N. W. 583. By the Court. — The judgment of the court below is reversed, and the cause remanded for further proceedings according to law.