It is bad practice to attempt in a single pleading to allege matter in bar of an action and at the same time to set up a cause of action in favor of the defendant. If the defendant has any cause of cross-complaint, he should plead it as such; for if it constitutes a cross-complaint, and is pleaded as such, it requires an answer from the plaintiff, and, as in the case of an original complaint, the rule that a pleading must be strictly construed. as against the pleader applies.36 The causes of cross-complaint should be separately stated, in order to avoid confusion;37 and where a pleading does not show what portions of it are intended as a legal defense to a complaint and what portions are intended as a cross-complaint, it will be held bad on demurrer for ambiguity.38 Unlike a counterclaim, new matter set up in a cross-complaint requires an answer, and the better practice therefore is to designate a cross-complaint as such. If, however, an answer states the facts necessary to constitute a cause of action for a cross-complaint, it is immaterial whether the defendant designates it an answer or a cross-complaint. It is the fact set up in the pleading which makes it the one or the other, and its character vl be determined by the court.40 If a pleading denominated a cross-complaint, and introduced as "a further and separate answer and cross-complaint," does not in fact constitute a crosscomplaint, it will not entitle the defendant to a judgment on the pleadings for failure of the plaintiff to answer. So, also, where the answer sets up a set-off and counterclaim, and prays for a judgment against the plaintiff for the amount alleged to be due, it is not a cross-complaint, and therefore is not required to be answered by the plaintiff.42 And where a paper is filed in an action by the plaintiff, and styled an "answer to the defendant's cross-complaint," it will not be considered as a pleading where no cross-complaint has in fact been filed. As a corollary of the 36 Shain v. Belvin, 79 Cal. 264, 21 Pac. 747. 37 Van Bibber v. Hilton, 84 Cal. 585, 24 Pac. 308, 598. 38 O'Connor v. Frasher, 53 Cal. 435. 39 Cal. Code Civ. Proc., § 462. 40 Holmes v. Richet, 56 Cal. 307, 38 Am. Rep. 54; Gregory v. Bovier, 77 Cal. 121, 19 Pac. 232. 41 Goldman v. Bashore, 80 Cal. 146, 43 41 22 Pac. 82; Shain v. Belvin, 79 Cal. 262, 21 Pac. 747; Banning v. Banning, 80 Cal. 271, 13 Am. St. Rep. 156, 22 Pac. 210. 42 Herold v. Smith, 34 Cal. 122; Jones v. Jones, 38 Cal. 584. 43 Carroll v. Girard Fire Ins. Co., 72 Cal. 297, 13 Pac. 863; Meeker v. Dalton, 75 Cal. 154, 16 Pac. 764; Mills v. Fletcher, 100 Cal. 142, 34 Pac. 637. above rule, it follows that the defendant cannot, after omitting to designate his pleading, insist that it was a cross-complaint so as to entitle him to a judgment on the pleadings, when in fact it was a counterclaim.* 44 § 659. Filing and service.-Most of the codes contain a provision similar to that in California, to the effect that the defendant may file a counterclaim at the same time and in addition to his answer, or subsequently, by permission of the court.45 Thus the cross-complaint is not necessarily a part of the answer, although it may be. The court may, in its discretion, permit a cross-complaint to be filed after the submission of the case, and for the purpose of making it conform to the proofs.46 48 The cross-complaint must be served upon the parties affected thereby." The only mode of serving defendants to the crosscomplaint, who are co-defendants served with the original summons, and of whom the court has acquired jurisdiction, is to serve the cross-complaint upon them in the manner required by law, although no summons is necessary. But where the plaintiff is the defendant in the cross-complaint, and all the matters of substance pleaded in the cross-complaint were pleaded in the answer served upon the plaintiff, and where it appears that the plaintiff has no beneficial interest in the cause of action, and that any proceeds recovered would belong to his assignors, who defended the cross-complaint, the omission to serve the plaintiff therewith is a harmless irregularity, not prejudicing any of his rights.49 44 Cohen v. Kelly, 132 Cal. 468, 64 Pac. 709. 45 Cal. Code Civ. Proc., § 442. 46 Jackson v. Jackson, 94 Cal. 446, 29 Pac. 957; Carter v. Lothian, 133 Cal. 452, 65 Pac. 962. 47 Cal. Code Civ. Proc., § 442; Idaho Rev. Codes, § 4198; Utah Comp. Laws, § 3231; White v. Pat ton, 87 Cal. 151, 25 Pac. 270; Willman v. Friedman, 4 Idaho, 209, 95 Am. St. Rep. 59, 4 Idaho 299, 38 Pac. 937; Chalmers v. Trent, 11 Utah, 88, 39 Pac. 488. 48 Rodgers v. Parker, 136 Cal. 313, 68 Pac. 975. 49 McKenzie v. Hodgkin, 126 Cal. 591, 59 Pac. 36, 77 Am. St. Rep. 209. FORMS OF CROSS-COMPLAINT. 660. By defendant, outline form. Form No. 207. [TITLE OF ACTION AS ORIGINALLY COMMENCED.] The defendant, C. D., answering the complaint herein, and by way of cross-complaint against the plaintiff and the defendants [name those who will be affected by the relief sought], and also N. O. and O. P., who this defendant prays may be brought into this action and made parties thereto, alleges: [Here plead as in an answer to the original complaint, and then set forth the new cause of action substantially as in a complaint.] [Conclude with a prayer for affirmative relief.] [VERIFICATION.] G. H., Defendant's Attorney. § 661. Cross-complaint for divorce for plaintiff's adultery. Form No. 208. For a cross-complaint, the defendant alleges [proceedings as in forms given in chapter CII]. Wherefore, the defendant demands judgment, etc. [as in said forms.] § 662. Order bringing in new parties on filing of cross-complaint. The defendant, C. D., having filed a cross-complaint in this action, praying affirmative relief in relation to and affecting the subject-matter of this action, and it appearing from the same. that N. O. and O. P. are necessary parties to a complete determination of the controversy involved in said cross-complaint, On motion of G. H., attorney for said defendant,— It is ordered, that said N. O. and O. P. be brought in as parties defendant in this action, and that the proceedings be amended to include them as defendants; that copy of said cross-complaint and of this order be served upon each of them and upon each of the co-defendants of said C. D. within ten days from this date, and that they have twenty days after such service, exclusive of the day thereof, in which to answer said cross-complaint. [Add such further conditions as the case requires.] Done this. . . day of . . ., . ., 19.. J. K., Circuit Judge. CHAPTER XXVII. SEVERAL DEFENSES. § 663. Demurrer and answer.-The defendant may demur to the whole complaint, or to one or more of several causes of action stated therein, and answer the residue, or may demur and answer at the same time. This, however, does not justify the mixing of law and fact in the same answer. But he cannot demur to part of an entire cause of action and answer the residue; nor can he, in New York, demur and answer at the same time to the same cause of action. The same rule applies in Oklahoma.* This is similar to the rule in chancery. A demurrer to a part of a bill, followed by an answer as to the rest, is not deemed overruled or withdrawn. An answer pleading separately two defenses, one specifically denying the allegations of the complaint, and one setting up affirmative matter, is not subject to a general demurrer.7 3 § 664. Objections, how taken.-Defects which appear on the face of the complaint must be objected to by demurrer, or they are waived, and cannot be objected to by answer; so with a defect of parties. And the same cause of action cannot be demurred to and answered at the same time, as the answer over 1 Cal. Code Civ. Proc., § 431; People v. McClellan, 31 Cal. 101; Alaska Codes, pt. 4, ch. 7, § 58; Ariz. Rev. Codes, § 4175; Mont. Rev. Codes, § 6535; Nev. Comp. Laws, § 3135; N. Mex. Comp. Laws, § 2685; subd. 35; Or. B. & C. Codes, § 68; Utah Rev. Stats., § 2962; Wash. Codes, §§ 2907, 2911; Wyo. Rev. Stats., 3535. Bal. 2 Brooks v. Douglass, 32 Cal. 208. Ingraham v. Baldwin, 12 Barb. 10; Struver v. Ocean Ins. Co., 16 How. Pr. 422; Munn v. Barnum, 12 How. Pr. 563, 1 Abb. Pr. 281. 4 Ryndak v. Seawell, 13 Okla. 737, 76 Pac. 170. Clark v. Phelps, 6 Johns. Ch. 214; Bruen v. Bruen, 4 Edw. 640; Souzer 6 Pierpont v. Fowle, 2 Woodb. & M. 23, Fed. Cas. No. 11152. When the objection must be taken by demurrer, when by answer, see Brainard v. Jones, 11 How. Pr. 569. 7 Snipsic v. Smith, 7 Cal. App. 150, 93 Pac. 1035; Cal. Code Civ. Proc., § 441. 8 Zabriskie v. Smith, 13 N. Y. 322, 64 Am. Dec. 551. • Slocum v. Wheeler, 4 How. Pr. 373; Spellman v. Weider, 5 How. Pr. 5; Munn v. Barnum, 1 Abb. Pr. 281. 12 rules the demurrer.10 But in California he may both answer and demur at the same time to each several cause of action.11 Nor will the court allow a party to withdraw his answer and demur 12 But the defendant may demur to one count and answer to the other.13 An objection to the jurisdiction of the court, and that the complaint does not state facts sufficient to constitute a cause of action, can be taken at any time.1 It is an established and universal rule of pleading in chancery, that a defendant may meet a complainant's bill by several modes of defense-he may demur, answer, and plead to different parts of the bill; so that if a bill for discovery and relief contain proper matter for the one and not for the other, the defendant should answer the proper, and demur to the improper, matter; and if he demur to the whole, the demurrer will be overruled.15 § 665. What answer waives.-An answer and demurrer may be interposed at the same time. But filing an answer is a waiver of the demurrer previously interposed;16 and of irregularities previously set up in demurrer." It is also a waiver of alleged error as to change of parties by substituting one defendant for another without notice.18 An answer cannot properly set up an objection which appears upon the face of the complaint where a demurrer upon that ground had been overruled.19 But objections which are subjects of demurrer, but do not appear upon the face of the complaint, may be taken by answer. 20 An equitable defense to an action at law for money had and received must be pleaded.21 A defendant waives his objection to any ruling of the court with reference to the form of the pleading by answering and going to trial.22 Answer after a demurrer overruled is a Pierce v. Minturn, 1 Cal. 470; Brooks v. Minturn, 1 Cal. 481; Bibend v. Kreutz, 20 Cal. 109; Hodgson v. Marine Ins. Co., 1 Cranch C. C. 569, Fed. Cas. No. 6566; Irwin v. Henderson, 2 Cranch C. C. 167, Fed. Cas. No. 7084. 17 Bell v. Railroad Co., 4 Wall. 598, 18 L. Ed. 338. 18 Smith v. Curtis, 7 Cal. 584. 19 Tennant v. Pfister, 45 Cal. 272. 20 Cal. Code Civ. Proc., § 433. 21 Marks v. Sayward, 50 Cal. 58. 22 Anderson v. North Pacific Lumber Co., 21 Or. 281, 28 Pac. 5. |