
    Frank Linscott, appellant, v. Bertha Lecocq Linscott, appellee.
    No. 48022.
    (Reported in 51 N.W.2d 428)
    
      February 5, 1952.
    Dickinson & Dickinson, of Des Moines, for appellant.
    J. D. Reynolds and D. W. Harper, both of Crestón, for ap-pellee.
   Mulronby, J.

Frank Linscott, a resident of Wisconsin, sued bis wife, Bertha, in the district court of Union County where she resided. The petition set forth a contract signed by plaintiff and defendant, designed to settle their property rights at the time they separated, some months before, and alleged that plaintiff signed the contract by reason of the fraud, duress, coercion, and overreaching of defendant. The prayer was for a decree holding the contract void and for judgment for $4000, the amount plaintiff had paid defendant under the contract and for other equitable relief.

The first division of defendant’s answer amounts to a denial and the second division is a petition in equity for a divorce on the grounds of cruel and inhuman treatment, and, in addition, the prayer asks for attorney fees and snit expenses for defendant in tbe sum of $1000 and temporary and permanent alimony in tbe sum of $25,000.

Plaintiff filed a special appearance to Division II of' tbe answer and, when tbis was overruled, a motion to' strike the division. Tbe trial court overruled the motion to strike and we granted to plaintiff tbe right to appeal from tbe above rulings.

I. As we construe tbe pleadings, Division II of the answer is a counterclaim. Wilson v. Wilson, 40 Iowa 230. It is not entitled counterclaim but that is not important. 71 C. J. S., Pleading, section 173. It is tbe statement in a separate division (as required by rule 72, Rules of Civil Procedure) of defendant’s cause of action against plaintiff. While our Rules of Civil Procedure have made some procedural changes with respect to counterclaims, we think tbe term “counterclaim” carries the same meaning it bore in tbe statutes which tbe rules supersede. Prior to tbe adoption of tbe Rules of Civil Procedure the word “counterclaim” as it appeared in our Code was used to embrace tbe terms: set-off, counterclaim and cross-demand. See 24 Iowá Law Review 314, quoting report of tbe Code Commissioners (Code of 1873): “Tbe frequent repetition of tbe terms set-off, counterclaim and cross-demand have induced us to use tbe term counterclaim alone and embrace in tbe definition thereof all subjects which heretofore have been embraced in all.”

II. Section 598.2, Code, 1950, provides: “An action for a divorce shall be by equitable proceedings, and no cause of action, save for alimony, shall be joined therewith.” Plaintiff argues tbe counterclaim for divorce constitutes a joinder of a divorce action with bis action on the contract and it is therefore barred under tbe above statute. Defendant contends that tbe contract which is tbe basis of plaintiff’s suit was the adjustment of property rights between the parties and as such it falls within the definition of a suit involving alimony and her counterclaim is therefore not barred by the above statute. Plaintiff’s suit is not an action for alimony. The answer to plaintiff’s argument is that Division II of the answer is not a “joinder” of the action therein stated with the action stated in the petition. A joinder of actions is “the statement of more than one cause of action in a declaration.” 1 C. J. S., Actions, section 61. It is: “The union of two or more causes of action in the same declaration.” Bouvier Law Diet., sub verbo “Joinder.”

Hammond v. Perry, 38 Iowa 217, 219, and Sigler v. Hidy, 56 Iowa 504, 9 N.W. 374, are somewhat in point. In the Hammond case there was a statute (section 3277, Code of 1873) providing: “The action for partition shall be by equitable proceedings, and no joinder or counterclaim of any other kind shall be allowed therein except as provided in this chapter.” The action was for foreclosure, of a mortgage and the defense was “in the nature of a counterclaim” for partition of the realty. In allowing the counterclaim we pointed out: “The prohibition is confined to partition actions; this is an action of foreclosure.”

In the Sigler case there was a similar statute (section 3226, Code'of 1873) governing replevin actions, providing there could be no joinder of a replevin action with an action not of the same kind and no countei'claim. We held that in a suit on a note the defendant could counterclaim by a replevin action to recover possession of the note.

III. The briefs also contain arguments with respect to a misjoinder based on rule 27(b), Rules of Civil Procedure. Because we hold the statement of a single action in a petition and the statement of a single action in a counterclaim do not constitute a joinder of actions within the statute or rules we need not consider the argument further.

IV. Plaintiff also argues the court would be without jurisdiction to hear the divorce action counterclaim because plaintiff was a nonresident and no notice of this action was served upon him. Tn our opinion the fact that plaintiff was a nonresident is immaterial. The issues presented on this interlocutory appeal will all be decided by the answer to a single question. Was the action defendant stated against plaintiff an allowable counterclaim under the Iowa Rules of Civil Procedure? If it was, the court would have jurisdiction without the service of notice of the divorce action on plaintiff. Service of notice of counterclaim is not required by statute or rule in Iowa. The plaintiff invoked the jurisdiction of the Iowa courts by filing his petition. By this act he submitted himself to the jurisdiction of the Iowa court as to any counterclaim allowed under the procedural rules and statutes of tbis state. As stated in Restatement, Conflict of Laws, section 83:

“A plaintiff by bringing an action 4n a state subjects himself to the jurisdiction of the state as to the claim sued upon, and, if the- law of the state so prOYÍdes at the time the plaintiff brings his action, as to any set-off, counterclaim or cross-action brought against him by the defendant- during the pendency of the first action.”

A similar rule is contained in Restatement, Judgments, section 21, comment c, and in tlxe comment following the rule it is stated :

“The plaintiff by bringing his action subjects himself to the jurisdiction of the court as to any counterclaim which the defendant properly makes against him, even though the plaintiff is not otherwise subject to the jurisdiction of the state. This is true whether under the law of the state the defendant is permitted to make a counterclaim only where it arises out of the transaction or occurrence which is the subject matter of plaintiff’s claim, or whether he is permitted to include in his counterclaim any claim which he may have against the plaintiff.”

Our rules with respect to the right to- file a counterclaim, which we discuss in the next division, are the same as Rule 13, Federal Rules of Civil Procedure. General Elec. Co. v. Marvel Rare Metals Co., 287 U. S. 430, 53 S. Ct. 202, 77 L. Ed. 408, is somewhat in point. There it was held a pei-son’s right to be sued in his home district for patent infringement (Equity Rule 30 and section 48 Judicial Code) would not bar a counterclaim for infringement in a suit brought by the alleged infringer in another district.

Y. We can assume defendant’s counterclaim was not within the rule compelling the filing of a counterclaim “arising out of the transaction or occurrence that is the basis” of plaintiff’s action. Rule 29, Rules of Civil Procedure. The question is whether it was a permissive counterclaim under rule 30, Rules of Civil Procedure, providing: “Unless prohibited by rule or statute, a party may counterclaim against an opposing party on any cause of action held by him when the action was originally commenced, and matured when pleaded.” This language is broad and we see no reason why defendant’s counterclaim is not within the inclusion of the rule. As we have previously pointed out, the counterclaim would not be prohibited by the statute, section 598.2, Code, 1950, and there is no rule barring the filing of such a counterclaim. It was an action held by the defendant at the time plaintiff commenced his action and it was a matured claim at the time it was pleaded. After all, both actions are based on contracts between the parties. Plaintiff by his petition seeks the avoidance of a written contract he and defendant entered into. Defendant by her counterclaim seeks the remedies granted by law by reason of plaintiff’s alleged breach of a marriage contract she and plaintiff entered into. Mott v. Mott, 82 Cal. 413, 22 P. 1140. That defendant’s counterclaim, if established, would not or might not serve to defeat or diminish plaintiff’s claim is unimportant. Rule 32 specifically provides: “A counterclaim may, but need not, diminish or defeat recovery sought by the opposing party. It may claim relief in excess of, or different from, that sought in the opponent’s pleadings.”

VI. Statutes in most jurisdictions have broadened the early common-law remedy of counterclaim. The limitations in such statutes on the right to file a counterclaim have generally received a liberal construction where equitable rights are in controversy. 71 C. J. S., Pleading, section 167. The common-law limitation that a counterclaim could only reduce what the plaintiff asked for was broadened by statute in this state in the Code of 1851, section 1740. The statute with respect to permissive counterclaims in this state, section 11151, paragraph 3, Code of 1939, which the above quoted rules supersede, appeared in exactly the same language in section 2659, Code of 1873. The statute provided that a counterclaim must be: “Any new matter constituting a cause of action in favor of the defendant * * * and which the defendant * * * might have brought when suit was commenced, or which was then held, either matured or not, if matured when so pleaded.” It is apparent that the statute which existed before the rules granting the right to counterclaim on “any new matter” was based on the idea of settling all differences between the parties in one controversy. See “Development of Counterclaim in Iowa”, 24 Iowa Law Review 310-328. We said in Allen v. Maddox, 40 Iowa 124, 128, 129, that the cross-demand allowed under the above statute would “apply to all claims not covered by the definition of counterclaim and set-off;” and'that “causes of action, not resting on contracts may be pleaded as cross-demands in actions upon contracts; and causes of action upon contracts may. be so pleaded in actions of tort.”

The experience in New York is interesting. There the earlier civil practice acts limited matrimonial counterclaims to matrimonial actions but after the 1948 report of the judicial council the above provision in the civil practice act was repealed and a new act passed allowing a counterclaim for divorce, separation, or annulment in any civil action between a husband and wife. Matthews v. Matthews, 193 Misc. 258, 84 N. Y. S.2d 197; Cecil v. Cecil, 198 Misc. 653, 102 N. Y. S.2d 874.

The rulings appealed from are affirmed.' — Affirmed.

ThompsoN, C. J., and Bliss, Oliver, Garfield, Wenner-strtjm and Hays, JJ., concur. ■

Smith, J., not sitting.  