Moyle v. Porter — 51 Cal. 639

Majority

p. 639

[No. 4782.]

J. W. MOYLE v. NATHAN PORTER et al.

Headnote

Counter-claim.—In an action by one in possession of real estate to quiet the title, if the defendant, in his answer, sets up facts essential to a complaint in ejectment against the plaintiff, and aslcs that the x>ossession of the xiremises he awarded to him, the answer does not contain a counter-claim, and the plaintiff may dismiss the action.

Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.

Action to quiet the title to a part of block 127 on the Potrero Nuevo, city and county of San Francisco. "When the cause was called for trial, the plaintiff moved to dismiss the action. The court denied the motion. The defendants recovered judgment and the plaintiff appealed.

The other facts are stated in the opinion.

Douthitt & McGraw, for the Appellant.

Williams & Thornton and E. D. Sawyer, for the Respondents.

The “cause of action” set forth in the complaint was that the defendants claimed as estate or interest in the premises of which the plaintiff averred himself to be in the possession, and the “subject of the action was the adverse claim, estate or interest, ” set up_ by the. defendants.

The answer of the defendants did not amount to a counter-claim. It stated the facts essential to a complaint in ejectment against the plaintiff, and demanded that the possession of the premises be awarded to the defendants. This was neither the statement of a cause of action arising out of the transaction set forth in the complaint, nor one connected with the subject of the action in the sense of the statute. (Code Civil Procedure, Sec. 438.)

The motion of the plaintiff to dismiss the action should, therefore, have been sustained.

Judgment reversed and cause remanded, with directions to dismiss the action.