Summary
In Phipps v. Wilson, 125 N.C. 106, which was claim and delivery for personal property, the answer denied plaintiff's title and set up wrongful seizure in the action as a counterclaim; here the plaintiff's demand, as stated in his complaint, was in direct contradiction of defendant's claim, and it was necessary that it should be passed upon before defendant's right could be established. It was therefore manifest error to give judgment on defendant's counterclaim for want of a reply, when plaintiff's complaint or demand was in itself a denial of the defendant's right.
Summary of this case from Smith v. FrenchOpinion
(Decided 31 October, 1899.)
Claim and Delivery — Counterclaim — Damages — Practice.
1. Where claim and delivery are sued out — complaint filed — also answer, denying title of plaintiff, and containing a counterclaim for damages by reason of the unlawful seizure, to which no reply is filed — the question of damages can not be considered until after the issue as to the lawfulness of the seizure is determined.
2. Such counterclaim is inadmissible in this action, as it did not arise out of the same cause of action, and did not exist at the commencement thereof.
CIVIL ACTION for the recovery of personal property, heard before Robinson, J., at February Term, 1898, of GUILFORD Superior Court.
J. A. Barringer and L. M. Scott for plaintiff (appellant).
Charles M. Stedman and J. N. Staples for defendant.
The plaintiff, by virtue of a mortgage with power of sale from the defendant, claimed to be the owner and entitled to the possession of a water wheel or motor, including all patterns and fixtures for the same. The defendant denied the allegation of ownership, and set upon a counterclaim for damages to his business by reason of the unlawful seizure. There was no reply to the counterclaim.
On motion of defendant, his Honor rendered judgment by default and inquiry in favor of defendant upon the counterclaim; from which judgment the plaintiff appealed.
The plaintiff sued out claim and delivery, the defendant set up as counterclaim damages accruing from such seizure, which he alleges was wrongful. There being no reply filed, his Honor gave judgment by default and inquiry in favor of defendant upon the counterclaim. This was error while the issue raised by complaint answer as to lawfulness of the seizure was undetermined.
Besides such counterclaim could not be set up in this action, for it did not arise out of the same cause of action, nor did not exist at the commencement of the action. Kramer v. Light Co., 95 N.C. 277; Puffer v. Lucas, 112 N.C. 377.
Error.
Cited: Griffin v. Thomas, 128 N.C. 313; Satterthwaite v. Ellis, 129 N.C. 71; Smith v. French, 141 N.C. 9; Tillinghast v. Cotton Mills, 143 N.C. 271.