Miley v. Heaney

SiebboiceR, J. The style and form of the cross-complaint seem to follow the formal precedents that existed under the rules of pleading before the adoption of our Code. The Code abolished all such formal and needless repetitipn in a plead [139] ing. The style of pleading a cross-complaint as contemplated by sec. 2656a, Stats., is governed by the Code provision applicable to a complaint and an answer, namely, “A plain and concise statement of the facts constituting each cause of action, without unnecessary repetition” (sec. 2646, Stats.), and “A statement of any new matter constituting a defense or counterclaim, in ordinary and concise, language, without repetition” (see. 2655, Stats.). The significant requirements of these provisions are that a cause of action shall he stated by alleging a plain and concise statement of the facts in ordinary language, without unnecessary repetition. Compliance with these Code provisions is manifestly wanting in this cross-complaint. It plainly transgressed them by unnecessary repetition and by the failure to make but one plain and concise statement of the facts constituting the causes of action. The matters alleged in the cross-complaint constitute in substance two causes of action; one for the recovery of $15,127.85 and the other for the recovery of $23,920.02. A plain and concise statement of the facts material to the primary rights of each party to the action pertaining to these two claims and their primary duties in respect thereto meets all the calls of proper practice under our Code. The ancient and discarded practice which existed prior to the Code seized hold of external arbitrary features of a transaction, and treated these features as of substance and raised them to the dignity of separate and independent grounds of relief, though in substance they were bottomed on one primary right and one primary duty. A cross-complaint in compliance with the Code demanded only a plain and concise statement of the material facts for recovery of the two specified amounts on which the primary right of the trustee in bankruptcy is predicated and the facts showing a separate or joint duty of Miley and the Heaneys to pay the same. The alleged six separate causes of action in the cross-complaint constitute in substance but two causes of action, and the statement thereof as six separate [140] causes of action, by reverting to the ancient forms which have no place in our Code practice, added nothing to the substance of the pleading. It is manifest that it is the purpose of the complaint and the answer and the cross-complaint to express one object, namely, to have the rights of the parties arising out of the subject matter adjudicated. The allegations of these pleadings show that each party to the action asserts rights and charges liabilities which relate to the transactions, contracts, and property involved and which, under the allegations, affect each party to the action. The legal claims of the respective parties are so interrelated that a determination of the right to a recovery of the two amounts in controversy and the liability for the same must be had to settle the questions involved in the issues raised between the plaintiffs and the defendants ITeaney. In the light of this situation the trustee in bankruptcy was properly made a party to the action under secs. 2610 and 2656a, Stats. The allegations of the pleadings show that the matters embraced in the litigation are all intimately connected, that the demands of the cross-complaint are germane to the subject of the action, that the rights and liabilities of all the parties as shown by the pleadings'can be determined in this action, and that under the facts and circumstances alleged a final determination of them is desirable. Kollock v. Scribner, 98 Wis. 104, 73 N. W. 776; Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909; Warren Webster & Co. v. Beaumont H. Co. 151 Wis. 1, 138 N. W. 102; Hemenway v. Beecher, 139 Wis. 399, 121 N. W. 150; McCollom v. M., St. P. & S. S. M. R. Co. 152 Wis. 435, 139 N. W. 1129; Conway v. Zender, 154 Wis. 479, 143 N. W. 162; ch. 219, Laws 1915, amending sec. 2610, Stats. 1915. The objection that this practice deprives the parties of their rights to a jury trial is not well founded. If a jury issue is presented in connection with an equitable issue the court shall, in its discretion, under sec. 2844, Stats., direct [141] wbicb shall be first tried, according to the rights of the parties under sec. 2843, Stats., prescribing by whom issues are triable. From these considerations it follows that the cross-demands of the trustee in bankruptcy are properly pleadable, and that the facts alleged are sufficient to constitute two causes of action, and that the court properly overruled defendant’s demurrer to the cross-complaint. By the Court. — The order appealed from is affirmed.