The defendant in a possessory action in the nature of ejectment
brought in a court of Washington Territory where the laws permitted
a mingling of common law and equity jurisdictions pleaded the
general issue and also set up four defenses, one of which was the
statute of limitations and one of which was an equitable defense.
The plaintiff filed a general demurrer to the second, third and
fourth defenses. The demurrer being overruled, the plaintiff
elected to stand upon it, and the case was thereupon dismissed:
Held that the final judgment was one dismissing the action
at law, and was not a judgment in the exercise of chancery
jurisdiction.
Page 132 U. S. 217
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Appellants commenced a possessory action in the nature of
ejectment against appellee in the District Court of the Second
Judicial District of Washington Territory, by complaint in the
ordinary form. To this the defendant filed an answer denying title
in plaintiffs and otherwise equivalent to the plea of not guilty,
and in addition pleaded affirmatively four defenses, setting up,
among other things, the ten-years' statute of limitations upon
actions for the recovery of real property. §§ 25, 26, Code
Wash.Ter. 1881, 39. The fourth affirmative defense was addressed to
the judge of the district court, and alleged a variety of facts,
constituting, appellants contended, an equitable defense, if any at
all, which they denied.
The plaintiffs filed a demurrer in these words:
"And now come the plaintiffs and demur to the second, third, and
fourth separate answers and defenses of defendant herein for the
reason that they do not state facts sufficient to constitute a
defense to this action."
This demurrer was disposed of, and judgment rendered as
follows:
"This case coming on for hearing upon demurrer to the answer,
and having been submitted to the court on briefs of counsel of
plaintiffs and defendant, and the court, having fully considered
the questions presented by the pleadings on file in this case,
overrules the demurrer to the answer; to which ruling or decision
the counsel for plaintiffs then excepted, and gave notice of his
intention to appeal, and the counsel for plaintiffs having elected
to stand upon the ruling of the court upon said demurrer, and not
to reply or further plead to the
Page 132 U. S. 218
answer, the case is now here dismissed, with costs against the
plaintiffs to be taxed, and that execution issue therefor.
Whereupon counsel for plaintiffs excepted, and gave notice of
appeal to the supreme court."
Appeal was accordingly prosecuted to the territorial supreme
court, under the act of the territory "in relation to the removal
of causes to the supreme court," approved November 23, 1883. Laws
Wash.Ter. 1883, p. 59. It was held in
Breemer v. Burgess,
2 Wash.Ter. 290, that this act was cumulative and complete within
itself, and did not repeal §§ 458-460, Code 1881, relating to
appeals and writs of error, Code Wash.Ter. 1881, 114, and that
cases might be brought up to the supreme court of the territory,
either by the procedure prescribed in the Code or that in the
statute of 1883. The Code provided for service of a notice of
appeal or writ of error, which should contain, among other things,
in case of appeal, "a particular description of every decision,
ruling, order, or decree" by which appellant claimed to have been
aggrieved, and which he relied upon as ground for reversal or
modification, and, "in case of a writ of error, a particular
description of the errors assigned." These requisitions were
omitted in the act of 1883, but at its July term of that year, the
supreme court adopted a rule which required, in all law causes
brought up under that act, an assignment of errors to be made in
writing filed and served substantially as provided for in section
458 of the Code.
No assignment having been made, the appeal was dismissed for
noncompliance with the rule in that particular,
Brown v.
Hazard, 2 Wash.Ter. 464, and the case comes before us on
appeal from the judgment of dismissal.
As the rule did not require such assignment in an equity cause,
the question passed upon was whether this cause should be held as
one in equity or at law, and the court decided that it was the
latter.
The Act of Congress of April 7, 1874, 18 Stat. 27, "concerning
the practice in territorial courts and appeals therefrom," provided
that it should not be necessary
"in any of the
Page 132 U. S. 219
courts of the several territories of the United States to
exercise separately the common law and chancery jurisdictions
vested in said courts, and that the several Codes and rules of
practice adopted in said territories respectively, insofar as they
authorize a mingling of said jurisdictions or a uniform course of
proceeding in all cases, whether legal or equitable, be confirmed,
. . .
provided that no party has been or shall be deprived
of the right of trial by jury in cases cognizable at common
law."
By subdivision 4 of section 76 of the Code of the territory, it
was provided that, "when the relief sought is of an equitable
nature, the complaint shall be addressed to the judge of the
district in which the action is brought;" by subdivision 3 of
section 83, that
"the defendant may set forth by answer as many defenses and
counterclaims as he may have, whether they be such as have been
heretofore denominated 'legal' or 'equitable' or both,"
and by section 445, that
"every final judgment, order, or decision of a district court or
judge thereof, in actions of an equitable nature, where equitable
relief is sought or where chancery jurisdiction has been exercised,
shall be reviewed in the supreme court by appeal."
Referring to these provisions, appellants' counsel contends
that, the fourth affirmative defense (and he insists the first
should be taken with it) being an equitable defense, the cause, by
the action taken thereon, became "transformed into a cause in
chancery."
But the demurrer was to the second, third, and fourth
affirmative defenses, and the defendant had also pleaded the
general issue. The judgment upon demurrer held the three
affirmative defenses good. The final judgment was one dismissing
the action at law, and, upon the pleadings as they stood, was not a
judgment in the exercise of chancery jurisdiction. The supreme
court correctly held that the cause was at law, and not in equity,
and, this being so, it is not denied that the dismissal for
noncompliance with the rule necessarily followed.
The judgment is affirmed.