Herold v. Smith

         Section forty-six of the Practice Act (Stats. of 1866, p. 702,) provides that the answer of the defendant shall contain, besides denials:

         1. Matter in avoidance.

         2. A counter claim.

         3. The subject matter of a cross complaint.

         That the last is not intended as equivalent to the second subdivision, is evident by comparing the definition of a counter claim in section forty-seven with the provision in section forty-six; the cross complaint may be against others than the plaintiff.

         Section fifty (Stats. of 1866, p. 702,) also classifies the various answers of the defendant in the same way, by providing that the plaintiff may " demur" to the " matter in avoidance or a counter claim," for " insufficiency," and that " when the answer contains a cross complaint," the parties against whom relief is therein demanded may " demur or answer" thereto.

         By this section it will be seen that the plaintiff can only " demur" to a counter claim. No provision is made for answering it. Should an answer be interposed to a " counter claim," the Court would strike it out as not being a pleading authorized by statute.

         JUDGES: Sanderson, J. Mr. Justice Shafter expressed no opinion.

         OPINION

          SANDERSON, Judge

         The plaintiff was not required, under the amendments of 1866, to deny the defendant's counter claim in order to put him upon his proof. In respect to matter in avoidance and to counter claims, the rule is the same as before the amendments of 1866. Those amendments introduced a new pleading called a cross complaint. When the answer contains a cross complaint, it must be replied to, so far as the cross complaint is concerned, or the matters therein alleged will be taken as confessed. But in no other respect is the plaintiff required to reply to the answer.

         Order affirmed.