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chancery relative to the cross-bill, as modified by the spirit of the Code, are still resorted to.2 In other States, express provision is made for a cross-complaint or petition, enabling a defendant to obtain thereby affirmative relief against any of the other parties.3 Thus, in California, 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. Such cross-complaint must in itself, like a complaint, state all the requisite facts to entitle the defendant to affirmative relief, and defects in it cannot be cured by the averments of any other pleading in the action. In Ohio, the cross-petition may be contained in the answer, without any formal designation. The plaintiff against whom an answer demanding "affirmative relief" is filed is a defendant to a cross-petition. And it is not necessary, to entitle the defendant to set up in his answer a claim to relief by way of cross-petition, that the answer should contain a denial of the allegations of the petition, or a statement of new matter.8 In New York, the counter-claim secures to a defendant all the relief, which either an action at law or a bill in equity or a cross-bill would have secured on the same state of facts, and no express provision has been made for a cross-complaint.9 Under the statute of Indiana,1o the defendant in a divorce suit may not only file an answer, but also a cross-petition, and the court may decree the divorce to the defendant upon evidence introduced by the plaintiff only." As to the sufficiency of a cross-pleading, it is held that a cross-complaint, filed by a defendant in an action for the recovery of real estate, averring his ownership of

the property that the plaintiff asserts title thereto, but has none, is good on demurrer.12 So a description of real estate in a cross-complaint in an action to quiet title, omitting the county and State, but designating it as "the real estate in the complaint mentioned," was held sufficient.13 In a cross-action in an attachment suit for the wrongful suing out of the writ, the defendant must allege that the damages which he claims to have sustained have not been paid, and a cross-petition defective in this respect inay be assailed by demurrer.1 It has been held, that while it is true that a cross-complaint must be substantially sufficient to maintain an action in favor of the cross-complainant, independently of the averments of the complaint, yet in matters of mere description it may refer to and adopt some of the allegations of the complaint; 15 and this is particularly the case as to written instruments, and copies of such instruments, filed with the complaint, and common to both pleadings.16 And in an action upon a promissory note, a cross-complaint asking to have the note delivered up and cancelled need not set out a copy of the note.17 A cross-complaint filed in a foreclosure suit, asserting a title to the land described in the mortgage, is essentially an action to quiet title, and the pleading and practice in such cases must be essentially the same as in actions instituted to quiet title.18

1 See Mitf. Eq. Plead. 81; 2 Wait's Pr. 474. The allegations of the cross-bili must grow out of and be connected with the subject-matter of the original bill: Heard . Case, 32 Ill. 45; Crisman r. Heiderer, 5 Colo. 589; Daniel v. Morrison, 6 Dana, 186; May v. Armstrong, 3 Marsh. J. J. 262; Cross v. Del Valle, 1 Wall. 5.

2 See Tucker . St. Louis Life Ins. Co. 63 Mo. 588; Fletcher v. Holmes, 25 Ind. 465.

3 Cal. Code Civ. Proc. 442; Ohio Rev. Stats. 5059; Iowa Code, 22663; Ky. Code, ? 96.

4 Cal. Code Civ. Proc. 442; Moyle r. Porter, 51 Cal, 639. In Kentucky, a cross-petition must set up a cause of action affecting the subject-matter of the action: Royse v. Reynolds, 10 Bush, 286; Crabtree v. Banks, 1 Met. 484.

5 Kreichbaum v. Melton, 49 Cal. 55; Collins . Bartlett, 44 Cal. 381. See O'Connor v. Frasher, 53 Cal. 435; Thompson v. Thompson, 52 Cal. 154; Lynch v. Brigham, 51 Cal. 491; McAbeer. Randall, 41 Cal. 137; Doyle v. Franklin, 40 Cal. 110; James v. Center, 53 Cal. 31.

6 Klonne v. Bradstreet, 7 Ohio St. 322.

7 Kimmel v. Pratt, 40 Ohio St. 344.

S Bradford v. Andrews, 20 Ohio St. 208. See Fithian v. Corwin, 17 Ohio St. 118.

9 See Boston etc. Mills v. Eull, 1 Sweeny, 359; 6 Abb. Pr. N. S. 319; 37 How. Pr. 293; Leavenworth v. Packer, 52 Barb. 132.

10 Rev. Stats. (1881) ? 1040.

11 Glasscock v. Glasscock, 94 Ind. 163.

12 Collins v. McDuffie, 89 Ind. 562. The question of the sufficiency of the facts stated in a cross-complaint, to constitute a cause of action, is not waived by the failure to deniur: Gossard v. Woods, 98 Ind. 195.

13 Cookerly v. Duncan, 87 Ind. 332.

14 Hencke v. Johnson, 62 Iowa, 555.

15 Cookerly v. Duncan, 87 Ind. 332. See Masters v. Beckett, 83 Ind. 595.

16 See Branham v. Johnson, 62 Ind. 259; Crowder v. Reed, 80 Ind. 1; Ewing v. Patterson, 35 Ind. 326; Pattison v. Vaughan, 40 Ind. 253; Sidener v. Davis, 69 Ind. 336.

17 Gardner ". Fisher, 87 Ind. 363. See Citizens' State Bank v. Adams, 91 Ind. 280.

18 Fitzpatrick v. Papa, 89 Ind. 17. And see Ewing v. Patterson, 35 Ind. 326; Board of Commissioners v. Railroad Co. 50 Ind. 85.

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? 103. When necessary, in general. A reply is the last pleading of fact which is permitted under the Code system of pleading, strictly speaking, but a rejoinder, surrejoinder, and subsequent pleadings are likewise allowed under the Kentucky Code.1 On the other hand, no reply is permitted under the California Code, and so in Nevada;3 and the statement of any new matter in the answer, in avoidance or constituting a defense or counter-claim, must, on the trial, be deemed controverted by the opposite party. In some of the States, a reply must be made to all material allegations of new matter in answer, or they will be taken as true.5 In still others, no reply to new matter in the answer is necessary, unless such new matter constitutes a counterclaim or set-off; except that, in a few of these latter States, the court may, in its discretion, on the defendant's application, direct the plaintiff to reply to the new matter. In Iowa, a reply is not admissible, except to a counter-claim, or to plead matter in avoidance of the defense set up by the defendant; and where a reply both denies the allegations of an answer which is not a counter-claim, and pleads matter in avoidance thereof, the denial must be disregarded, and the plea in avoidance must be regarded as implying a confession

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of the answer.9 If an answer contains no new matter, but merely denies the allegations of the complaint or petition, no reply is required; 10 as, for instance, an answer denying that the defendant committed the act charged, and alleging that it was committed by a third person, is merely a denial, and requires no reply." So where an answer purports to admit a certain fact not stated in the complaint or petition, such answer will not be construed as alleging affirmatively that such fact exists, so as to require the plaintiff to reply thereto.12 And the failure to reply to a defense set up in the separate answer of one defendant is no admission of such defense as to the other defendant not setting it up.13 So where a case has been tried as if a reply was on file, and the evidence has been closed, the fact that there is no reply will not be taken as an admission of the new matter in the answer. 14

1 Code, 98-100. See Nutter v. Johnson, 80 Ky. 426; Crapster v. Williams, 21 Kan. 109.

2 Code Civ. Proc. 422. And see Bryan v. Maume, 28 Cal. 238; Herold v. Smith, 34 Cal. 122.

3 Comp. Laws, 1101. So in Idaho: Code, 228.

4 Cal. Code Civ. Proc. 462; Nev. Comp. Laws, 1128; Doyle v. Franklin, 40 Cal. 106; Colton Co. v. Raynor, 57 Cal. 588.

5 Neb. Code Civ. Proc. 109; Scofield v. State Nat. Bank, 9 Neb. 316; Ohio Code Civ. Proc. 101; Creighton v. Kellerman, 1 Disn. 548; Ind. Code Civ. Proc. 2 67; Kimberling v. Hall, 10 Ind. 407; Wagn. Mo. Stats. p. 1017, 15; Kan. Code Civ. Proc. 102; Ballanger v. Lautier, 15 Kan. 608; Board of Education v. Shaw, 15 Kan. 33; Oreg. Code Civ. Proc. 75.

6 N. C. Code Civ. Proc. 105; N. Y. Code Civ. Proc. 514; Devlin v. Bevins, 22 How. Pr. 290; Wis. Rev. Stats. (1878) 2661; Stowell v. Eldred, 39 Wis. 614; S. C. Code Proc. 176; Ariz. Code Civ. Proc. 261; Ark. Dig. (1874) 4579; Cannon ". Davies, 33 Ark. 56; Colo. Code Civ. Proc. 122; Minn. Code Proc. 2 83; Vassear v. Livingston, 13 N. Y. 248; Metrop. Life Ins. Co. v. Meeker, 85 N. Y. 614.

7 See N. Y. Code Civ. Proc. 516; Hubbell v. Fowler, 1 Abb. Pr. N. S. 1; Dillon v. Sixth Av. R. R. Co. 14 Jones & S. 21. If the defendant knows, with reasonable certainty, the answer which will be given to his defense, the court will refuse to require the plaintiff to reply: Hubbell v. Fowler, 1 Abb. Pr. N. S. 1; Jarvis v. Pike, 11 Abb. Pr. Ñ. S. 398.

8 Iowa Code. 2665; Zinck v. Phoenix Ins. Co. 60 Iowa, 266; Meadows v. Hawkeye Ins. Co. 62 Iowa, 387.

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