Opinion of the court by
Irwin, J.:The assignments of error are two. First. That the court erred in refusing the defendants’ motion for judgment, to which refusal the defendants excepted at the time. Second. That the court erred in ruling that the defendants’ answer did not contain matter entitling them to affirmative relief, and in holding that the plaintiff had the right to dismiss the entire action, to which ruling of the court these plaintiffs in error duly excepted at the time.
It is apparent from reading the answer above set out that-affirmative relief is claimed. The answer in plain and concise language sets up the facts that the plaintiff’s tax deed, under which she claims title, is void; that plaintiffs in error have title in themselves; and the prayer is that the tax deed be declared null and void, and that the title to the real estate be quieted in these defendants. Now, we take it that it is immaterial what particular title the pleader may give to his pleading, or what he may-call it, whether an answer or cross-petition; if the facts pleaded are sufficient to authorize the granting of affirmative relief, and affirmative relief is prayed for by the answer, then it is the duty of the court to treat it as a cross-petition, regardless of what the pleader may call it. Such seems to have been the holding of the California supreme court in the case of Meeker v. Dalton, 75 Cal. 154, 156, 16 Pac. 764.
“It is immaterial what the defendant calls his pleadings, whether he designates it as an answer or cross-complaint. Its character will be determined by the court. It is the facts set up in the pleadings which make it an answer or cross-petition.”
*488And in Kimball v. Connor, 3 Kan. 414, the Kansas supreme court say:
“The answer of Starks being sufficient, in substance, for the relief demanded, the court would not require the filing of a cross-petition in form, but would treat the answer as such petition and grant all just relief demanded.”
This Kansas decision was a construction of the Kansas code on this subject, and was rendered prior to our adoption of the code, and consequently was adopted by this territory with the adoption of the code.
This identical answer was before this court and passed upon by this court as to its effect, and it was held that, if the defendant could establish the matters alleged in this answer, the tax deed was void. 13 Okla. 670-688, 76 Pac. 226. The answer concludes with a prayer that is affirmative in its character; that is, that the tax deed issued herein and the conveyance thereon from Lawrence to plaintiff each be declared null and void, and that the title to said real estate be quieted in these defendants, and for costs of suit and all proper relief. The answer sets up the particulars wherein the plaintiff’s tax deed is void and asks for the affirmative relief of having it declared void and the title vested in defendants. It certainly seems to us that, if this language does not allege affirmative matter, we are at a loss to know how an answer could be so framed as to ask for affirmative relief. Our statute (chapter 24, article 1, section 1, Session Laws of 1899), which seems to us conclusive on this subject, provides:
“That a plaintiff may, on the payment of costs and without any order of the court, dismiss any civil action brought by him at any time before a petition of intervention or answer praying for affirmative relief against him is filed in the action. A plaintiff may, at any time before the trial is commenced, on payment of the costs and without any order of court, dismiss his action after the filing of a petition of intervention or answer praying for affirmative relief, but such dismissal shall not prejudice the right of the intervenor or defendant to proceed with the action. Any defendant or intervenor may, in like manner, dismiss his action against *489the plaintiff, without an order of court, at any time, before the trial is begun, on payment of the costs made on the claim filed by him. All parties to a civil action may- at any time before trial, without an order of court, and on payment of costs, by agreement, dismiss the action. Such dismissal shall be in writing, and signed by the party or his attorney, and shall be filed with the clerk of the district court, the judge or clerk of the probate -court, or the justice, where the action is pending, who shall note the fact on the proper record: provided, such dismissal shall be held to be without prejudice, unless the words, ‘with prejudice,’ be expressed therein.”
Section 4289 of the Statutes of 1893 provides as follows:
“In any place where a set off or counterclaim has been presented, the defendant shall have the right of proceeding to the trial of his claim, although the plaintiff may have dismissed his action or failed to appear.”
In the case of Venable v. Dutch, 37 Kan. 515, 15 Pac. 520, the Kansas supreme court say in the syllabus-:
“1. Where a plaintiff files a petition in ejectment, and defendant in his answer, in addition to a general denial, states he is in possession of the same land, and claims to be the owner thereof by virtue of a tax deed and asks that his title thereto may be quieted against plaintiff, that part of his answer claiming title in himself and asking affirmative relief is a counterclaim.
“2. In such an action, when the plaintiff dismisses his cause of action, the defendant has the right to proceed to the trial of his claim, for the purpose of determining his interest in the land, as against the plaintiff. Pie then assumes all the burdens of a plaintiff, and is entitled to his rights, so far as amending his pleadings is concerned.”
Now, under the provisions of our statutes, and under the holdings of the Kansas supreme court under an exactly similar statute, it is apparent that, while the plaintiff had a right at any time before final judgment to dismiss his action, it was not error on the part of the court to allow- the plaintiff to dismiss so far as his petition was concerned, but the defendant, having filed an answer alleging facts sufficient to warrant, and having asked for affirmative *490relief, bad the right to proceed with the case to final judgment so far as affirmative relief is concerned, and to have all the aid and assistance from the court which was necessary to secure such relief as he was entitled to under the pleadings. It is insisted by counsel for defendant in error that no exceptions were saved to the ruling of the court sustaining the motion .of plaintiff to dismiss her action. We take it that it is immaterial whether exceptions were saved to this or not, as the dismissal of the case by the plaintiff under our statute would not affect or jeopardize the rights of the defendant after they had filed an answer containing affirmative matter and asking for affirmative relief. In other words, it is immaterial to defendants whether she dismissed ■ her case or not, as under the law they had the right to proceed to final judgment so far as affirmative relief is concerned.
Now, it is apparent from this record that at the time the motion was made for judgment on the affirmative allegations of the • defendants’ answer, that such allegations'were in no way denied. The answer was not attacked by any motion to separately state and number, or by any demurrer, neither was any reply filed. No pleadings of any kind or character were filed by the plaintiff whereby the ‘affirmative allegations of the defendants’ answer were denied. Section 4006 on page 182, Statutes of 1893, Oklahoma, contains, this provision:
“Every material allegation of the petition, not controverted by the answer, and every material allegation of new matter in the answer, not controverted by the reply, shall, for the purposes of the action, be taken as true. * * *”
In the case of Ballinger v. Lantier, 15 Kan. 458, the Kansas supreme court say:
“The answer of the defendant, we think, was also sufficient; and, as it alleged some new matter constituting a defense to the plaintiff’s petition, we think it needed a reply from the plaintiff.”
Now, it seems to us that, when this motion for judgment on the pleadings was filed, the original cause of action as described *491in the petition having been dismissed, no reply of any kind having been filed, no demurrer and nothing which in any way controverted the allegations of the answer, under the plain provisions of onr statute it then became the duty of the court to sustain this motion. But we are inclined to the opinion in the administering of exact justice between the parties the trial court could have the right to exercise some discretion in the granting or refusing of this motion. The circumstances of a case might be such that exact justice would require that the party who was in default of a reply should have the right to make such reply out of time. These affirmative allegations of the answer were sufficient, if answered, to raise an issue. That issue, if sustained on the part of the defendants, was in our judgment, sufficient to have warranted the giving of the relief sought, and the court, in the exercise of sound discretion, should have the right to compel the party making the allegation in the answer to prove the issue, and for this purpose should have the right to grant the plaintiff leave to file a reply in the nature of an answer, to raise this issue, and, when raised, to have it tried and decided by the court. But we think it was the plain duty of the court either to have sustained this motion for judgment on the pleadings, or to have ruled the plaintiff to file a reply in the nature of an answer. And, if such reply was filed, and such issue raised, to hear the evidence and try and determine this issue.
A refusal to grant the prayer of the motion for judgment on the peladings, without making any order on the plaintiff to file a reply,-and without putting the party making the motion in a position that he could secure from the court the rights to which he was entitled, was error for which this case should be reversed, which is accordingly done, at the costs of the defendant in error, with directions to the district court to rule the plaintiff to file a reply in the nature of an answer to the affirmative allegations of the answer within a short day to be named by the court, and, if such answer is filed, to hear the evidence and try and determine the *492issues, and, in default of such answer, to render judgment for the defendants on the pleadings.
Burford, C. J., who presided in the court below, not sitting; Pancoast and Garber, JJ., absent; all the other Justices concurring .