Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1903-11-08

CO00teGCl4lm inserted IN the answer
Is waived. ID supported By abundant
authority In the cases that were cited.
Short extracts from part Of these
opinions indicate how well the rule IL
established Tho question whether at
counterclaim was lawfully presented
was not raised upon the trial,-and
should have been presented by de-
murrer or by an objection at the trial. |
It cannot. therefore. be now consider
ed" Westervelt v. Ackley. 81. n. 7.
sos.
THE objection was not made that
liability SO incurred was not the propsrI
subject Of counterclaim. 1t is there
fore, too late to raise it now" Yam
v. Rouse "a N. Y, 4O7
Appellant now asks a reversal Of
the Judgment. on the sole ground that
the so-called supplemental cross-com-
plant of q defendant was insufficient.
But the case comes clearly within the
rule that where case is tried upon
the theory that the issues are properly
joined in the trial court. and no objec-
ton or exception is taken there, it is
too late to raise such objections here
Kirsch v. Kirsch. S3 Cal. G35, approx
ing Hiatt v. Board of Trustees, IS Cal ,
4S1; Spiers, v. Duane, 81 Cal, 17G:
Cave v. Crafts. SO Cal, 141: Van Ma
rem v. johnson. Is Cal. 313; SO Cal !,
e35.
1.-THE cause of action alleged in the
answer. being in no way connected
| with the subject of plaintiffs action,
was not proper matter Of counter
claim But the only way to make the
| objection that cause OF action al
legged as a counterclaim is not the
proper subject of counterclaim in the
particular action is by demurrer. 4
plaintiff omits to demur on that
ground, and takes issues upon the
facts alleged, he valves his objection
to the character of the cause of act
ion, and consents that it may be trie-
and determined as if it were prope'
to plead it as counterclaim. XVII
Mimi, 149, Walker johnson.
THE plea does not show any con
nections between the two transaction
| and it is manifest from it's allega'
ions that they we're wholly independ
, emit on each other. We do not beli'
} that a general demurrer was suficien
: to. cause the plea or cross action to b
: stricken out. There can be no objection
} to such cross demand being Above
| in a sui. on a liquidated claim, II tn
e plaintiff be satisfied to have 1t hear
D and determined. The statute was 81
; acted for the benefit of the plaintiff
q and ne may waive it. as one ma
e waive the statute of limitations"
I B. Frank Co. v. A. H. Motley Co.,
8 8. W., 1858.
l. The provision of the statute a
d ainst q set-off of q claim on contra
Q against q recovery on tort, does ~
l, apply where there is NO objection
It the parties or Judge to the pleadir
8 of a set-off" (Syllabus). Gillet
l. Moody, 81 s. w. IS.
p. But even il the counterclaim we
70 an improper one the Defendant wal
IS ed the objection by not demurring
y the answer. It was said in Parker
c. Virgins, 10 Kan, AIS, that the Plat
,e tin instead of availing himself OF
g bar to the action on the counterclail
in preferred to risk a hearing upon u
st merits; but the courts properly he
d that that point had been waived
h neglecting to interpose it as
a. tense at the proper time. Such
n. tense not being upon the merits
n. called dilatory, and its indulgence.
a. cept at the first favorable opportuni
at is not favored in law. This point
A. been decided in Zabriskie v. Smi
ne 13 N. T., 322, and in Merritt v. Wall
d. 80 N. Y, 689, SO far as the same
It. is applicable to a petition, ana
IN think the same rules are applicable
ne counterclaim set up by way OF q
o. wer that govern demurrer to a
We tition." 50 p, 1918.
er This additional count. however,
~ is contended in a form ex delic
or which could not be joined with
10 original count ON the same cause
he action, which was ex contractu. b
he whether it was subject to that or
in cism or not. it is unnecessary to
Mt, eide, even II SuCn mlSJOiAuOA
ce listed, since there was no obJectl
or raised for it's alleged misjoinder W
zu- the Others" Richmond & D. r. {
ed v. Jones, IA S., 1876.
Is s'The District Court had jurisdict
On of both causes of action, and we m
lid presume that Plaintiff in error
as satisfied to have them joined. T
Of court will not notice alleged err
ON to which no exception was taken
nd the trial court. Petit v. Black.
ui- Neb., 142; u N. w. Rep. BAL; Dutc
me ". State, is Neb., 80; 10 N. w. 4
OBJ 612; Warrick " Rounds, II Neb., I
Ict- % N. w. Rep, 785. First Nat. Bank
ur. North Bend v. Nittonberger, 81 N.
The 232.
be at is equally well settled that
to question Of the proper subject
aw counterclaim must be raised by
up murrer or it will be deemed waive
ex- Walker v. johnson, % Mimi. 147
on~ n. w. 632; Boom Co. ~. Prince,
DRY MINI. IL; N. w. 344; Tally v. Tori
ses ~ N w. 632.