Osmers v. Furey, 32 Mont. 581 (1905)

Citation: Osmers v. Furey, 32 Mont. 581 (1905)
Parent Document: Osmers v. Furey, 32 Mont. 581 (1905)
Jurisdiction: Montana (state)
Effective Date: 1905-07-03
Original Source: https://www.courtlistener.com/opinion/8062985/osmers-v-furey/ ↗

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The issue involved is the right of plaintiff to recover the possession of the property, or its value. The defendants could *593•not therefore be allowed to set up a counterclaim for a money judgment, and thus defeat the right of plaintiff to recover such possession. The nature of the action does not permit the interposition of such a defense. TJnder section 691 of the Code of Civil Procedure, providing for the interposition of counterclaims as a defense, such counterclaims only are allowed as tend in some way to diminish or defeat the plaintiff’s recovery. A claim for a money judgment, whether arising out of the transaction set forth in the complaint or not, tends in no way to defeat or diminish the plaintiff’s right of recovery of the possession of the property wrongfully taken from her.

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