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Rule 97. Counterclaim and Cross-claim (Mar1941)

TEXT

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim within the jurisdiction of the court, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the Court cannot acquire jurisdiction.

(b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party whether or not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.

(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party, so long as the subject matter is within the jurisdiction of the court.

(d) Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after filing his pleading may be presented as a counterclaim by amended pleading.

(e) Cross-claim Against Co-party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a, counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

(f) Additional Parties May Be Brought In. When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants as provided in these rules, if jurisdiction of them can be obtained and their joinder will not deprive the Court of jurisdiction of the action; provided that in tort cases this rule shall not be applied so as to permit the joinder of a liability or indemnity insurance company, unless such company is by statute or contract liable to the person injured or damaged.

(g) Tort shall not be the subject of setoff or counterclaim against a contractual demand nor a contractual demand against tort unless it arises out of or is incident to or is connected with same.

(h) Separate Trials; Separate Judgments. If the court orders separate trials as provided in Rule 174, judgment on a counterclaim or cross-claim may be rendered when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of.

Amended by orders of March 31, 1941, eff. Sept. 1, 1941: The proviso in subdivision (f) takes the place if the last sentence of subdivision (f) in original rule 97, and subdivision (g) has been added. Subdivision (g) in original Rule 97 has been changed to (h).

ADVISORY OPINIONS

(No. 106) Question: Is it permissible under the new rules for the tenant-defendant who has been overcharged in rent to file a cross-action in Forcible Entry and Detainer suit to recover the treble damages and attorneys fees to which he is entitled under the Price Control Act?

Answer: In our opinion, the question should be answered in the negative. Forcible entry and detainer is an extraordinary remedy requiring speedy disposition to be efficacious. For this reason, from the time of its introduction one of its general principles, upon the authority of statute, was that the only issue to be contested in the proceeding would be "the right to actual possession." The legislature at length engrafted exceptions allowing, on appeal, recovery of damages, etc., incurred on account of the withholding of possession, and allowing the joinder of claims for rent if within the jurisdiction of the justice court. These are the only exceptions that obtained when the rules were adopted and, together with the general principle, they have passed into rule form with no change in substantial wording other than an extension of the second of the exceptions so as to be open to a great extent to either party. No exception to cover the remedy mentioned in the question has been promulgated unless it lies in Rule 97, which allows any kind of a counterclaim against any kind of a claim, with qualifications which are not here pertinent. The liberal rules of joinder and counterclaim in district and county courts did not obtain in forcible entry and detainer cases before the adoption of the rules, but the exceptions to the general principle of one issue only, above described, were always up to that time exclusive. There is no indication that the rules intend to depart from the principle or add to the exceptions in any other way than to enlarge one of the exceptions in the manner already stated. The authorities for the views above expressed are Clark v. Snow, 24 Tex. 242 (1859); H.K. & F.B. Thurber & Co. v. Conners, 57 Tex. 96 (1882); Hengy v. Hengy, 151 S.W. 1127 (Tex. Civ. App.-San Antonio 1912); R. S. 1879, Arts. 2440-2463; R. S. 1925, Arts. 3973-3994 and Rules 738-751.

7 Tex. B.J. 14 (1944) reprinted in 8 Tex. B.J. 39 (1945).