Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-01-19
Supreme Court

State Of North Dakota, in Supreme
Court, October Term, 1912.
Mas Christofferson, Plaintiff and Re-
spondent, VS.. Ole T.. Wee, Defend
ant.
l. When a pleading is only attack
ed by motion or objection to the in
PRODUCTION of evidence on the trial 1t
will he construed more literally in
favor Of the pleader than when the
attack is made by demurrer.
2. Sec. $3.50, r. C. 1905, provides
that an answer may contain a state
ment of any new matter constituting
a defense or cou%nter-claim; and Sec.
$500, r. C. 1905, requires such coun-
ter-claim to be one existing in favor
Of a defendant and against a plaintiff
between whom a several Judgment
might be had in the, action, and arts
ing out Of one Of the following causes
OF action:
a. Accuse Of action arising out
of the contract or transaction set
forth in the complaint as the founda-
ton OF the plaintiffs claim or con
lnected with the subject OF the action.
(2) In an action arising on con-
.,ract any other cause of action arts,
ing also on contract and existing at
the commencement OF the action.
Held, That in an action on prom
issory notes given on a conditional
sale of real estate for the purchase
price, a counteRclaim attempted to ne
pleaded by the defendant, setting up
the conditions on, which defendant
| CLAIMED the sale was made, which, II
true, rendered the notes in suit IN
the hands OF the pay voidable. such
| counterclaim comes within para
graph No. l Of Sec. $500, supra, and
her.ce it does not follow that the acts
set up in the counter-claim must have
been done or contracted to be done
before the commencement of the &C
ton, and that said paragraph l APP
plies to what was formerly termed a
"-.ecoupment."
8. A mere misnomer in designat-
ing a pleading as an amended plead
ing instead of a supplemental plead
ing has no effect where the %substan-
tial rights of the parties are not at
fected thereby, and an additional
pleading may be treated as supple.
mental, eyennthough designated as an
! amended pleading. This is particu-
| lari; so where the amended pleading,
was served by permission Of the court
| and was received and retained with
| out objection by the other party.
4. Where a pleading states the
main Acts necessary ITO constitute a
| cause CT action but omits to state
some details and is thereby rendered,
20 some extent, uncertain, the rem
| edy of the other party is by motion
to make more definite and certain or
a demand for a bill Of particulars,
| and when he does not avail himself
| OF either of these remedies for more
than ten months after the service of
the pleading or until a motion for
Judgment Tor lack OF a reply, his right
to object on grounds going to the in
completeness OF the pleading is Waiv-
| ed.
5. The objection that facts pleaded
in ant answer intended ITO set up a
| counter-claim do not constitute a
proper counterclaim in the action can
only be raised by demurrer, where.
the subject matter properly pleaded
might have constituted a valid coun-
terclaim.
G.. An order denying a motion for
Judgment on the pleadings as review
able on appeal from the judgment.
Z. Under Sec. 6S63, r. C. 1906, pro-
viding that every material allegation
contained in a counter-claim mot con-
|troverted by reply shall, for the pur-
|poses OF the action, be taken as true;
and Sec. 1854, authorizing the defend
ant to move, ON notice Of not less than
item days, for such judgment as he is
entitled to upon the statements OF his
counterclaim i'm case the plaintiff
fails to reply or demur thereto, 1T IS
HELD, that under the facts of this
case as set out in the opinion and as
against aU objecttc1s offered by
plaintiff, when motion rcr Judgment
was made for lack Of a reply, the de-