The opinion
WILDMAN, J.,
dissenting:
I am unable to concur with the majority of the court as to the disposal of the cross petition filed by the Lucas County Agricultural Society. On all other questions involved in the case I am in accord with my associates.
The action was brought in the lower court by Kerr and others, as county commissioners, asserting both title and right of possession in the land in controversy. The agricultural society and the exposition company were both properly made defendants. The exposition company was in possession and the agricultural society, equally with the plaintiffs, was a claimant to both title and possession. Its claims were adverse to those of the other parties and were “connected with the subject of the , action,” which, as I view the law, was the land in dispute.
The majority of the court seem to place some reliance on supposed adjudications in New York as to the scope of a counterclaim under our code procedure, defined in Rev. Stat. 5069 (Lan. 8584), and treat the “subject of the action” as “the claim of the plaintiff to possession of the premises.”
The claim of the plaintiffs is larger than a mere possession; they assert title as well as right to possession, and the claim of the agricultural society, as alleged in its cross petition is equally broad.
These claims are inconsistent and adverse. They are connected with the land, and the land itself, rather than the claim of either party to it, is the “subject of the action.” The rights asserted constitute the “causes ©f action,” not its subject.
That this is the proper distinction is clearly indicated in several adjudications and text-books, and has been recognized even in New *560 York. See language of the opinion in Glen & Hall Mfg. Co. v. Hall, 61 N. Y. 226, 236 [ 19 Am. Rep. 278 ], where the “property” is said to be the “subject of the action” in a “real action” (such as the one before us), although it may in some other eases be a “violated right.”
Bliss, Code Pleading Sec. 127, says that the New York court of appeals has been less liberal than other courts in its construction of the phrase “subject of the action,” as applied to counterclaims, and in Sec. 126 says that the land is the subject of the action in ejectment. Phillips, Code Pleading, gives substantially the same rule both as to land in ejectment suits and as applied to personal property in replevin suits. See also Phillips, Code Pleading Sec. 181, note 1; Secs. 252 and 330; and Lovensohn v. Ward, 45 Cal. 8, 10 .
In our own state this rule was applied to personal property in Morgan v. Spangler, 20 Ohio St. 38 ; and in Peter v. Foundry & Mach. Co. 53 Ohio St. 534 [42 N. E. Rep. 690], definitions and principles were adopted and enunciated which seem to me decisive of this question in Ohio. See pages 552 to 556 inclusive, in which Judge Bradbury discusses and construes several sections of our civil code of procedure applicable to counterclaims, cross petitions and the scope of the court’s jurisdiction when invoked.
In the case at bar the court had all parties asserting title to the land in controversy before it; their claims were adverse and related to the same land; and under the policy of our liberal code of preventing a multiplicity of suits, the agricultural society should, in my judgment, be permitted to litigate its claims against not only the plaintiffs, but its codefendant. The complexity of issues or difficulty of trying them to a jury is not so great as in many a case of set-off or counterclaim clearly permissible under the code; but, however complex or difficult, the cross petition asserted what our statute defines as a counterclaim:
“A counterclaim is a cause of action existing in favor of a defendant, and against a plaintiff or another defendant, or both, between whom a several judgment might be had in the action, * * * or connected with the subject of the action.” Revised Statutes 5069 (Lan. 8584).
No question is or can be made that under Rev. Stat. 5006 (Lan. 8521), the agricultural society was not properly made a defendant, and Rev. Stat. 5311 (Lan. 8827) provides that the court “may determine the ultimate rights of the parties on either side, as between themselves,” and Rev. Stat. 5782 (Lan. 9319) gives to a defendant in an action to recover real estate, special and express power to plead such counterclaim” as he has or might have in any other form of action, whether they are such as have heretofore been denominated legal or equitahie or both. ’ ’