CHAPTER XXVI. CROSS-COMPLAINT. § 654. Nature and object of cross-complaint.-As we have already pointed out, in discussing the distinction between counterclaim and cross-complaint, the latter is substantially the same as the cross-bill in equity. It is a pleading by the defendant to an action which contains a statement of facts sufficient to constitute a cause of action against another party with reference to the transaction upon which the original action is founded, or affecting property to which the original action relates.1 The provisions of the codes in those states where the cross-complaint is expressly provided for are similar to the provision in the California code. Whenever the defendant seeks affirmative relief against any party relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross-complaint.2 In Oregon, the cross-bill has been practically abolished, the code providing, that in an action at law, where the defendant is entitled to relief arising out of facts requiring the interposition of a court of equity and material for his defense, he may, upon filing his answer therein, also as plaintiff file a complaint in equity in the nature of a cross-bill, which shall stay the proceedings at law, and the case shall thereafter continue as a case in equity, in which said proceedings may be perpetually enjoined by final decree, or allowed to proceed in accordance with such final decree. Under the Kansas statutes,* affirmative relief may be had against the plaintiff, or against a co-defendant. Although there is no express statutory provision authorizing such pleadings to be designated cross-bills, yet they may be, and usually are, so designated. If defendant alleges facts 1 Estee's Pl. & Pr., § 3370; Snow v. Holmes, 71 Cal. 142, 11 Pac. 856; Coulthurst v. Coulthurst, 58 Cal. 239; Harrison v. McCormick, 69 Cal. 616, 11 Pac. 456. 2 Cal. Code Civ. Proc. § 442; Idaho Rev. Codes, § 4188; Bacon v. 3 Rice, 14 Idaho, 107, 93 Pac. 511; 8 Bellinger & Cotton's Code, § 391. upon which affirmative relief may be based, and such relief is prayed, it will be treated as a cross-petition. It would be equally proper, however, to describe such pleadings as a counterclaim." In all jurisdictions where relief by way of cross-complaint is authorized by statute, that relief must affect, or be affected by, the subject-matter of the action, or relate to or depend upon the contract or transaction in suit. In this respect the provision for cross-complaint is similar to one of the code provisions authorizing counterclaims, being broader, however, than the latter, in that it authorizes a cross-complaint against any party. It is to be noted also that the relief sought must, as in the case of this class of counterclaims, be affirmative relief. § 655. Against whom relief may be sought. So far as affirmative relief is sought by a defendant against a plaintiff, there is no more reason why the pleading should be denominated a crosscomplaint than a counterclaim; but although the statutes of the several states may vary in their provisions as to the parties against whom a cross-complaint may be set up, they all provide that relief may thus be had against a co-defendant. 8 Statements have been rather loosely made in cases to the effect that the parties named in the cross-complaint must be parties to the original action, and that the complaint itself must contain all the facts necessary to constitute a cause of action in favor of the defendant and against the plaintiff in the original complaint." But it may be laid down as a general rule that relief will be granted against a new party on a cross-complaint, provided he is a necessary party, although the statute is silent upon this point.10 While new parties may be brought in upon cross-complaint, however, their presence must be necessary to the full de 719; Lyman v. Stanton, 40 Kan. 727, 20 Pac. 510. • Brown v. Massey, 19 Okla. 482, 92 Pac. 246. 7 Venable v. Dutch, 37 Kan. 515, 15 Pac. 520, 1 Am. St. Rep. 260; Lyman v. Stanton, 40 Kan. 727, 20 Pac. 510. 8 Lewis v. Fox, 122 Cal. 244, 54 Pac. 823; MacKenzie v. Hodgkin, 126 Cal. 591, 59 Pac. 36, 77 Am. St. Rep. 209; Porter v. Grady, 21 Colo. 74, 39 Pac. 1091; Hill v. Frink, 11 Wash. 562, 40 Pac. 128. Estee's Pl. & Pr., § 3370; Coulthurst V. Coulthurst, 58 Cal. 239; Harrison v. McCormick, 69 Cal. 616, 11 Pac. 456. 10 Winter v. McMillan, 87 Cal. 256, 22 Am. St. Rep. 243, 25 Pac. 407; Eureka v. Gates, 120 Cal. 54, 52 Pac. 125; MacKenzie v. Hodgkin, 126 Cal. 591, 59 Pac. 36, 77 Am. St. Rep. 209; Stockton Sav. Soc. v. Harrold, 127 Cal. 612, 60 Pac. 165; First Nat. Bank v. Bews, 3 Idaho, 486, 31 Pac. 816; Chalmers v. Trent, 11 Utah, 88, 39 Pac. 488. termination of the rights of the parties then before the court touching the property in litigation between them; and new parties cannot be thus brought in where the property involved is not the same, and the plaintiff is not interested in or affected by the questions or property to which the cross-complaint relates.11 But the mere fact that the cause of action of the defendant includes additional property, as well as that with which the plaintiff is concerned, is immaterial.12 In Colorado, the equity rule permitting a cross-bill for affirmative relief against new parties obtains.13 Some of the states provide for cross-complaints against plaintiffs in cases where counterclaims would seem to be a sufficient remedy; and in other states, although there are no provisions relating to cross-complaints, a cross-complaint asking affirmative relief against the plaintiff is permissible.15 Under the California code,16 permitting intervention, and authorizing the defendant to file a cross-complaint," the plaintiff , may file such a cross-complaint, since the section permitting intervention treats the intervention as a complaint to which either party may answer or demur, as if it were an original complaint; so far as the intervention is concerned, the plaintiff then becomes. a defendant for the purpose of filing a cross-complaint.18 § 656. Necessity for relation to original complaint.-As has already been noted, equity practice required that the matters set up by cross-bill relate to or be connected with the matters set up in the original bill, and the codes, and cases construing them, have adopted this rule as to cross-complaints.19 If the cause 11 Lewis v. Fox, 122 Cal. 244, 54 Pac. 823; Goodell v. Verdugo etc. Co., 138 Cal. 317, 71 Pac. 354; Alpers v. Bliss, 145 Cal. 585, 79 Pac. 171. 12 Stockton Sav. Soc. v. Harrold, 127 Cal. 612, 60 Pac. 165. 13 Allen v. Tritch, 5 Colo. 222; Marriott v. Clise, 12 Colo. 561, 21 Pac. 909. 14 Snow v. Holmes, 71 Cal. 142, 11 Pac. 856; Waugenheim v. Graham, 39 Cal. 169; Harrison v. McCormick, 69 Cal. 616, 11 Pac. 456; Pfister v. Wade, 69 Cal. 133, 10 Pac. 369; Jackson v. Jackson, 94 Cal. 446, 29 Pac. 957; Willman v. Friedman, 4 Idaho 209, 95 Am. St. Rep. 59, 4 15 Gassert v. Black, 11 Mont. 185, 27 Pac. 791; Waite v. Wingate, 4 Wash. 324, 30 Pac. 81. 16 Cal. Code Civ. Proc., § 387. 17 Cal. Code Civ. Proc., § 442. 18 Wall v. Mines, 130 Cal. 27, 62 Pac. 386. 19 Nunez v. Morgan, 77 Cal. 427, 19 Pac. 753; Snow v. Holmes, 71 Cal. 142, 11 Pac. 856; Odell v. Wilson, 63 Cal. 159; Clark v. Taylor, 91 Cal. 552, 27 Pac. 860; Willman v. Fried of action set forth in a cross-complaint is entirely foreign to matters alleged in the original complaint, it is properly dismissed;20 although it would seem that the plaintiff would waive the objection by filing an answer to the cross-complaint.21 The mere relation of the matters alleged in the cross-complaint to the original complaint is not the only test, however, and although the pleading be designated a cross-complaint, and affirmative relief is asked, it will be regarded as an answer, if the matters set up are merely defensive;22 the mere fact that the pleading contains a prayer for affirmative relief cannot make that a cross-complaint which is only proper as a defense.23 In discussing the question whether tort could properly be the subject of a counterclaim, we noted in a previous section 24 several cases which apparently proceeded upon the theory that contrary causes of action for tort could not arise out of the same transaction. It was held in a California case that a cross-complaint is not allowable in actions for tort.25 Another result of the connection between the cross-complaint and the original complaint is that it falls with the original where the court has no jurisdiction of the action.26 It may be, however, that where the complaint does not contain jurisdictional allegations, the filing of a cross-bill will supply the defect.27 The omission of a material fact in a complaint is cured by its averment in a cross-complaint and the admission of such averment man, 4 Idaho, 299, 38 Pac. 937; Hill v. Frink, 11 Wash. 562, 40 Pac. 128; Haslam v. Haslam, 19 Utah, 1, 56 Pac. 243; Center Creek Water etc. Co. v. Lindsay, 21 Utah, 192, 60 Pac. 559. 20 Sterne v. Vincennes First Nat. Bank, 79 Ind. 560. 21 Boland v. Ross, 120 Mo. 208, 25 S. W. 524; Fitzgerald v. Cross, 30 Ohio St. 444. 22 Mills v. Fletcher, 100 Cal. 142, 34 Pac. 637; Miller v. Luco, 80 Cal. 257, 22 Pac. 195; Chalmers v. Trent, 11 Utah, 88, 39 Pac. 491. 23 Doyle v. Franklin, 40 Cal. 110; Brannan v. Paty, 58 Cal. 330; Carpenter v. Hewel, 67 Cal. 590, 8 Pac. 314; Shain v. Belvin, 79 Cal. 262, 21 Pac. 747. 24 Ante, § 635. 25 Heilbron v. Kings River etc. Co., 76 Cal. 15, 17 Pac. 933. But in Van Bibber v. Hilton, 84 Cal. 589, 24 Pac. 308, 598, the supreme court, commenting on this holding, says: "The expression so used in the case cited is in conflict with the express provisions of section 442 of the Code of Civil Procedure, if construed as meaning that in no case of an action for tort a cross-complaint would be proper or affirmative relief be granted. There are many cases of that kind where a cross-complaint might be proper. The expression so used in Heilbron v. Canal Co. stands alone, and is not supported by any of the other cases cited, and, our attention now being called to it, it is overruled." 26 Southern Pacific R. R. Co. v. Pixley, 103 Cal. 118, 37 Pac. 194. 27 Goodrum v. Ayers, 56 Ark. 93, 19 S. W. 97. 28 in an answer to the cross-complaint; and this is true, although a demurrer based on the omission has been erroneously overruled.29 § 657. Dismissal of complaint. The right of a defendant to a hearing on his cross-complaint cannot be defeated by a dismissal of the complaint; the cross-complaint still stands as though it were an original complaint,30 and this is true, even though the plaintiff be nonsuited on motion of the defendant.31 Thus a dismissal of a suit to foreclose a mortgage does not carry with it a cross-complaint setting up possession and title in the plaintiff, and praying to have the title quieted.32 Where, however, a crosscomplaint has been stricken from an answer, leaving only matters of defense, the plaintiff may dismiss it any time before trial;33 and if the plaintiff has filed his dismissal before service of summons and appearance of the defendant, and has served and filed. a notice of a motion to strike out an answer thereafter filed, and for the entry of a judgment of dismissal nunc pro tunc, he cannot be deprived of his right to the judgment of dismissal by the filing of a cross-complaint by the defendant before the hearing of the motion.34 § 658. Allegations. What has been said with reference to the necessity for allegations in a counterclaim applies with equai force to a cross-complaint; the pleading must state facts sufficient to constitute a cause of action against the party complained of, and it cannot be aided by averments in any of the other pleadings.35 It must be so framed as to state clearly and concisely the facts constituting the cause of action, in order that the relief prayed for, if granted, may be decreed in accordance therewith. 28 Cohen v. Knox, 90 Cal. 266, 27 Pac. 215, 13 L. R. A. 711. 29 Id. That defects in complaint are cured by averments of answer, see Daggett v. Gray, 110 Cal. 172, 42 Pac. 568; Vance v. Anderson, 113 Cal. 536, 45 Pac. 816. 30 Thompson v. Spraig, 66 Cal. 350, 5 Fac. 506; Mott v. Mott, 82 Cal. 413, 22 Pac. 1140; Hinckel v. Dorohue, 90 Cal. 389, 27 Pac. 381. 31 Warner v. Darrow, 91 Cal. 309, 27 Pac. 737; Maffett v. Thompson, 32 Or. 551, 52 Pac. 565, 53 Pac. 854. P. P. F. Vol. I-26 32 Watts v. Sweeney, 127 Ind. 116, 22 Am. St. Rep. 615, 26 N. E. 680. 33 Thompson v. Spraig, 66 Cal. 350, 5 Pac. 506. 34 Hinckel v. Donohue, 90 Cal. 389, 27 Pac. 381. 35 Coulthurst v. Coulthurst, 58 Cal. 239; Harrison v. McCormick, 69 Cal. 618, 11 Pac. 456; Stratton v. California Land etc. Co., 86 Cal. 353, 24 Pac. 1065; Winter v. McMillan, 87 Cal. 263, 22 Am. St. Rep. 243, 25 Pac. 407; Marriott v. Clise, 12 Colo. 561, 21 Pac. 909; Sheiffelin V. Weatherred, 19 Or. 172, 23 Pac. 898. |