
    Farmers’ National Bank v. Fletcher et al.
    Practice: counter claím:. Where, in an action to foreclose a mortgage to -which there were several parties defendant, one of them filed an answer and a counter claim stating facts sufficient to defeat plaintiff’s cause of action, it was error to render judgment for plaintiff.
    
      Appeal from Jones District Court.
    
    Monday, April 26.
    This was an action to foreclose a mortgage, in which, in addition to the mortgagors, one Edgar Loomis was made a party defendant. Loomis filed an answer and also a counter claim. He also filed an application for a continuance, which was overruled by the court, to which the defendant excepted. .Thereupon the court rendered judgment of foreclosure in favor of the plaintiff as prayed in the petition. The defendant, Loomis, appeals. . ,
    
      G. W. Field, for appellant.
    
      Bemley <& Bemley, for appellee.
   Miller, Ch. J.

-This judgment must be reversed. The counter claim pleaded by appellant states, a good cause of action, and, if true, must defeat the plaintiff’s recovery upon the note and mortgage sued on. It attacks them for fraud, and asks their cancellation. There was no reply to this counter claim filed by ifiaintiff. The allegations of fact therein stated being undenied, are to be taken as true. Code § 2712. This being the condition of the pleadings, it was error to render judgment for plaintiff.

Beversed.  