The answer can not be regarded as a cross-complaint. Doyle v. Franklin , 40 Cal. 110; Haskell v. Haskell , 54 id. 264; McAbee v. Randall , 41 id. 137; Doyle v. Franklin , 40 id. 110-111; Goddard v. Fulton , 21 id. 437.
JUDGES: Ross, J. McKinstry, J., and McKee, J., concurred.
OPINION
ROSS, Judge
A rehearing having been granted, the following opinion and judgment was rendered by the Court in Bank:
When this cause was before Department One, the effect of the order of the District Court made on the 20th day of March, 1865, denying the plaintiff's motion to dismiss the action and the resulting consequences were not considered. That order could only have been made upon the theory that the defendants' answer contained a counterclaim, for, by a provision of the Practice Act, then in force, the plaintiff was entitled to an order of dismissal unless the answer contained such a claim. (Bancroft's Practice Act, § 148.) The District Court, therefore, by its order made in 1865, denying the plaintiff's motion to dismiss the action, in effect said to the parties that the answer did contain a counterclaim. Upon that both sides appear to have rested content until January, 1876--a period of nearly eleven years--when the plaintiff gave notice of another motion to dismiss the action, which latter motion was heard April 13th, 1877, and resulted in the entry of an order on the 8th of May following, granting the motion. This order proceeded upon the theory that the answer did not contain a counterclaim. But the same Court had, by the order of March 20th, 1865, already determined just the reverse. All of the parties were then informed that, in the opinion of the Court, the answer of the defendants did contain affirmative matter which, if established, entitled them to affirmative relief. The defendants, therefore, were not called upon to take other steps for the protection or enforcement of their asserted claims against the plaintiff, but were justified in supposing that they would be judicially investigated, and the rights of the respective parties determined under the pleadings in the action then pending.
To permit the Court, after the lapse of eleven years, during which the statute of limitations may have barred the rights of the defendants, if they ever had any, so to change the interpretation of the answer as to prevent the defendants from being heard, would be clearly wrong. While these considerations effect a change in the judgment rendered by the Department, we adhere to the rule declared in the opinion there delivered, that as respects cases arising in the future " no averment in any answer will be held to constitute a counterclaim, unless it is so denominated, and the appropriate relief prayed. Wanting these requisites, the pleading will be held to be a defense only. It is so easy to commence a counterclaim, by denominating it a counterclaim, and to close it with a demand for relief, that it is not unreasonable, and does no violence to the spirit of the Code, to require the pleader to do so."
Judgment reversed.