July 5, 1922. The opinion of the Court was delivered by This is an action in claim and delivery, to recover possession of an automobile. The complaint, in substance, alleges that, at the time mentioned in the complaint, the plaintiffs were and still are the owners of a certain automobile, of the value of $4,000; that the defendant willfully and in a high-handed manner took said automobile from the possession of the plaintiffs, and still retains the same, to the damage of the plaintiffs in the sum of $5,000.
The defendant denied the allegations of the complaint, and alleged the following by way of counterclaim:
"That the plaintiffs went to the home of the defendant, and in a high-handed and willful manner took the said automobile; that in so doing the plaintiffs were disorderly and boisterous in their conduct, insulting to defendant's wife to the defendant's damage in the sum of $10,000. *Page 204
The plaintiffs demurred to the counterclaim, on the ground that it did not state facts sufficient to constitute a counterclaim, for the following reasons:
"(1) That it sets up or alleges a tort committed by the plaintiffs, their agents or servants.
"(2) Because a tort cannot be set up as a counterclaim to an action for claim and delivery.
"(3) Because the plaintiffs' complaint alleges an action based upon a contract, and there can be no counterclaim in tort, because a counterclaim growing out of a tort, and not connected with the same transaction, cannot be interposed in an action for the recovery of specific personal property.
"(4) Because it appears upon the face of defendant's counterclaim that the property sought to be recovered by the plaintiffs was not pledged in any way to secure credit or debt."
In disposing of the demurrer, his Honor thus rules:
"It is a very interesting question, and a novel one to me. I have no hesitation in saying if it were not for that last statute of 1920 I would overrule the demurrer, but under that statute I think I'll have to sustain the demurrer. (The Court here read the statute.) I do not think the defense demurred to arose out of the same state of facts. I also hold that this is an action ex delicto, and that is about all I care to say about the matter. It is a question I should like to see carried to the Supreme Court."
Act, Feb. 12, 1920 (31 St. at Large, p. 748), contains this provision:
"That in all actions sounding in tort, the defendant shall have the right to plead a similar cause of action against the plaintiff by way of counterclaim: Provided, that the cause of action of the plaintiff and defendant arise out of the same state of facts."
The main issue in the case arises out of the right to the possession of the automobile. Both the plaintiffs and the *Page 205 defendant seized the car. There was, therefore, a compliance with the proviso:
"That the cause of action of the plaintiff and defendant arise out of the same state of facts."
The order sustaining the demurrer is reversed.