N.M. R. Civ. P. Dist. Ct. 1-013
N.M. R. Civ. P. Dist. Ct. 1-013
For third-party practice, see Rule 1-014 NMRA. For joinder of necessary persons, see Rule 1-019 NMRA. For permissive joinder, see Rule 1-020 NMRA. For dismissal of counterclaims and cross-claims, see Rule 1-041 NMRA. For the effect of statute of limitations, see 37-1-15 NMSA 1978. Compiler's notes. - Paragraphs A, B, F, G and H are deemed to have superseded 105-405, C.S. 1929, relating to cross-complaints and new parties, and 105-417, C.S. 1929, relating to counterclaims as part of the answer. Compulsory counterclaim. - Legal malpractice claim regarding underlying litigation is not a compulsory counterclaim to an attorney charging lien. Computer One, Inc. v. Grisham & Lawless, 2008-NMSC-038, 144 N.M. 424, 188 P.3d 1175, rev'g 2007-NMCA-079, 141 N.M. 869, 161 P.3d 914. Opposing parties. - Where plaintiff responded to the attorney charging lien filed by plaintiff's former attorneys, alleging that the lien was not enforceable and disputed the lien in a hearing before the court, plaintiff was in a adversarial relationship with plaintiff's former attorneys and plaintiff was required to assert legal malpractice claims arising out of the same transaction as compulsory counterclaims to the attorney charging lien. Computer One, Inc. v. Grisham & Lawless, P.A., 2007-NMCA-079, 141 N.M. 869, 161 P.3d 914, cert. granted, 2007-NMCERT-006. Same claim. - In determining whether two actions raise the same claim, the court uses the transactional approach and views a claim in factual terms, regardless of what substantive law governs a claim or the legal theories that were actually raised in prior actions. Computer One, Inc. v. Grisham & Lawless, P.A., 2007-NMCA-079, 141 N.M. 869, 161 P.3d 914, cert. granted, 2007-NMCERT-006. Plaintiff's objections to the attorney charging lien filed by plaintiff's former attorneys and plaintiff's legal malpractice claims against the attorneys arose out of the same transaction because the objections and the claims involved the same underlying facts of the attorneys' representation of plaintiff in plaintiff's breach of contract claim against a third party and the settlement of plaintiff's claim and associated attorney fees and the facts of both claims would form a convenient unit for trial. Computer One, Inc. v. Grisham & Lawless, P.A., 2007-NMCA-079, 141 N.M. 869, 161 P.3d 914, cert. granted, 2007-NMCERT-006. Overriding emphasis of rule is on consolidation and expeditious resolution, where that is fair, of all the claims between the parties in one proceeding. The controlling philosophy is that, so far as fairness and convenience permit, the various parties should be allowed and encouraged to resolve all their pending disputes within the bounds of the one litigation. Ortega, Snead, Dixon & Hanna v. Gennitti, 1979-NMSC-056, 93 N.M. 135, 597 P.2d 745. Parties on one side of suit remain separate. - These rules, as well as the common understanding of what is meant by a party to a lawsuit, are inconsistent with the position that all parties on one side of a lawsuit are but one party. Romero v. Felter, 1972-NMSC-032, 83 N.M. 736, 497 P.2d 738. Pleading for affirmative relief prerequisite for award of same. - Where defendant asks for no affirmative relief either by counterclaim or cross-claim, yet court admits evidence with respect to prior transactions and occurrences which are not pleaded, judgment cannot properly be based thereon since evidence as to the previous transactions is inadmissible. Ross v. Daniel, 1949-NMSC-006, 53 N.M. 70, 201 P.2d 993. Failure to plead setoff no bar to recovery of same. - Under Rule 16 (see now Rule 1-016 NMRA), relating to pretrial procedure, it is expressly provided that the court may make an order, which, when entered, shall control subsequent course of the action, and as appellants are aware that appellee's claimed right to set off the repair bill is an issue in the cause and matters pertaining to the repair bill have been litigated without objection on appellants' part, and likewise the issue is a subject of findings and conclusions requested by appellants, appellee's failure to plead this setoff under this rule does not bar their recovery of this setoff. Charley v. Rico Motor Co., 1971-NMCA-004, 82 N.M. 290, 480 P.2d 404. Surety benefits from setoff due principal if principal made party. - Where, in an action against a surety, there is a credit setoff due the principal from the creditor, and the principal is made a party, the surety is entitled to such credit setoff. National Sur. Co. v. George E. Breece Lumber Co., 60 F.2d 847 (10th Cir. 1932) (decided under former law). Whether counterclaim will be considered compulsory is determined by the "logical relationship" test of compulsoriness: whether a "logical relationship" exists between the claim and any prior action. Heffern v. First Interstate Bank, 1983-NMCA-030, 99 N.M. 531, 660 P.2d 621; Slide-A-Ride of Las Cruces, Inc. v. Citizens Bank, 1987-NMSC-018, 105 N.M. 433, 733 P.2d 1316; Aguilar v. Valley Fed. Sav. Bank, 95 Bankr. 208 (Bankr. D.N.M. 1989 ). Logical relationship of claims. - New Mexico has adopted a logical relationship test to determine whether a claim is compulsory under Paragraph A. A logical relationship will be found if both the claim and the counterclaim have a common origin and subject matter. In the present case the claim for malpractice and the claim for legal fees have a common origin (the opinion letter) and a common subject matter (the performance of legal services). The two claims are logically related, and, absent some other consideration, the claim for legal malpractice was a compulsory counterclaim to the law firm's claim for legal fees. Brunacini v. Kavanagh, 1993-NMCA-157, 117 N.M. 122, 869 P.2d 821. "Opposing party". - An "opposing party", within the meaning of Paragraph A, must be one who asserts a claim against the prospective counterclaimant in the first instance. Bennett v. Kisluk, 1991-NMSC-060, 112 N.M. 221, 814 P.2d 89. Subdivision (a) (see now Paragraph A) applies where prior action ended in default judgment or stipulated judgment, even though no pleading was filed by the party with the counterclaim. Heffern v. First Interstate Bank, 1983-NMCA-030, 99 N.M. 531, 660 P.2d 621. Right to jury trial of legal issues in compulsory counterclaim. Evans Fin. Corp. v. Strasser, 1983-NMSC-053, 99 N.M. 788, 664 P.2d 986. Compulsory counterclaim lost if not timely filed. - Subdivision (a) (see now Paragraph A) requires that a party failing to plead any mandatory counterclaim to a cause of action cannot raise the same in a second and separate action. Terry v. Pipkin, 1959-NMSC-049, 66 N.M. 4, 340 P.2d 840. Even if prior action ended in default judgment. - Failure to plead a compulsory counterclaim bars a later action on that claim, even if the prior action ended in a default judgment. Bentz v. Peterson, 1988-NMCA-071, 107 N.M. 597, 762 P.2d 259. Compulsory counterclaim should be filed in small claims court. - A party should have asserted his claim for damages as a compulsory counterclaim in the small claims court, unless the jurisdictional limitation on the amount which may be involved in a case in that court operates to make inapplicable to counterclaims in that court the compulsory counterclaims provisions of this rule. Reger v. Grimson, 1966-NMSC-180, 76 N.M. 688, 417 P.2d 882. Unless jurisdictional amount would thereby be surpassed. - Absent legislation compelling, or at least authorizing, a transfer of the case to the district court, a defendant in a small claims court case need not plead his counterclaim, which is in an amount in excess of the jurisdiction of the small claims court. Reger v. Grimson, 1966-NMSC-180, 76 N.M. 688, 417 P.2d 882. Interpleader claimant may counterclaim in tort against stakeholder. - Where plaintiff insurance company brings interpleader action to determine which of competing claims to proceeds of a life insurance policy is the correct one, defendant who is one of claimants is not precluded from asserting counterclaim in tort for unreasonable delay, in bad faith, in making payments on the contract, despite plaintiff's contention that, as a stakeholder in an interpleader action, it is not an opposing party against whom a counterclaim can be filed. Travelers Ins. Co. v. Montoya, 1977-NMCA-062, 90 N.M. 556, 566 P.2d 105. Legal malpractice is compulsory counterclaim to action for fees. - A claim for legal malpractice is a compulsory counterclaim that must be asserted by a defendant in a civil action brought by his or her former attorneys to collect unpaid legal fees. Brunacini v. Kavanagh, 1993-NMCA-157, 117 N.M. 122, 869 P.2d 821. Prerequisites listed for survival of counterclaim from jurisdictional defect of complaint. - In those exceptional cases where a counterclaim may survive the jurisdictional failure of a complaint, at least three premises must exist. Jurisdiction must exist within the scope of the allegations of the counterclaim; the claim made in the counterclaim must be independent of that made in the main case; and, lastly, affirmative relief must be sought. Sangre De Cristo Dev. Corp. v. City of Santa Fe, 1972-NMSC-076, 84 N.M. 343, 503 P.2d 323, cert. denied, 411 U.S. 938, 93 S. Ct. 1900, 36 L. Ed. 2d 400 (1973). Right to sue separately on separate theories remains. - There is nothing in Subdivision (a) (see now Paragraph A) or any of the other rules which requires a modification of the long-standing right to sue on one theory, and, when it has been determined that the wrong remedy has been adopted, to then sue on another theory. Terry v. Pipkin, 1959-NMSC-049, 66 N.M. 4, 340 P.2d 840. Counterclaims not limited by commercial code. - There is no language in 55-9-505 NMSA 1978, or elsewhere in the commercial code, which would preclude the full exercise of the right to interpose counterclaims under this rule. Charley v. Rico Motor Co., 1971-NMCA-004, 82 N.M. 290, 480 P.2d 404. No provision authorizes filing counterclaim to counterclaim. - There is no provision for filing a counterclaim to a counterclaim, or mandatory requirement to amend a complaint to include additional theories as a result of the filing of a counterclaim. Terry v. Pipkin, 1959-NMSC-049, 66 N.M. 4, 340 P.2d 840. Counterclaim does not revive extinguished lien. - The lien created by statute authorizing recordation of a transcript of the docket thereof is a right as distinguished from a remedy, and if the remedy of foreclosure of the judgment lien prayed for in a counterclaim is barred, the lien has been extinguished. Pugh v. Heating & Plumbing Fin. Corp., 1945 -NMSC-031, 49 N.M. 234, 161 P.2d 714. Open account defendant need not counterclaim to have account credited. - A defendant in an action on an open account need not counterclaim for purpose of showing that certain entries should have been credited to the account. Heron v. Gaylor, 1942-NMSC-023, 46 N.M. 230, 126 P.2d 295 (decided under former law). Essentials of separately maintainable cause are necessary to allow permissive counterclaim. Dinkle v. Denton, 1961-NMSC-012, 68 N.M. 108, 359 P.2d 345. Offset claimed in bankruptcy for attorney fees deemed permissive counterclaim. - The nature of the offset claimed by defendant in bankruptcy suit for attorney's fees and expenses incurred by him when, in his capacity as accommodation indemnitor, he has guaranteed a performance bond for bankrupt parties is that of a permissive counterclaim as permitted under Subdivision (b) (see now Paragraph B). Dinkle v. Denton, 1961-NMSC-012, 68 N.M. 108, 359 P.2d 345. A cross-claim for indemnification filed by retailer-defendant against manufacturer-defendant sets forth a claim that arises out of the occurrence that is the subject matter stated in plaintiff's strict products claim. Trujillo v. Berry, 1987-NMCA-072, 106 N.M. 86, 738 P.2d 1331. Claim barred by limitation usable as counterclaim to extent of amount of complaint. - To an action on contract, any other cause of action on contract, though barred by limitation, may be interposed as a counterclaim, but no judgment for excess can be had. Great W. Oil Co. v. Bailey, 1930-NMSC-108, 35 N.M. 277, 295 P. 298 (decided under former law). Setoff derived from new matter available. - Promissory note, though made in final settlement of the account between the parties, can be met by defense of setoff as to new matter constituting a cause of action in favor of defendant. Staab v. Garcia y Ortiz, 1884-NMSC-001, 3 N.M. (Gild.) 33, 1 P. 857 (decided under former law). Counterclaim or cross-claim to quiet title allowed in mortgage foreclosure action, as there is nothing specific nor inherent in 42-6-1 NMSA 1978 at variance with the unrestrictive counterclaim provisions of this rule. Ortega, Snead, Dixon & Hanna v. Gennitti, 1979-NMSC-056, 93 N.M. 135, 597 P.2d 745. Subdivision (f) (see now Paragraph F) governs counterclaim amendments exclusively. Morrison v. Wyrsch, 1979-NMSC-093, 93 N.M. 556, 603 P.2d 295. Unnecessary for pleader to plead oversight, inadvertence or excusable neglect in his amended pleading once the court has allowed the addition. Morrison v. Wyrsch, 1979-NMSC-093, 93 N.M. 556, 603 P.2d 295. Contingent obligation cannot be pleaded as setoff. Staab v. Garcia y Ortiz, 1884-NMSC-001, 3 N.M. (Gild.) 33, 1 P. 857 (decided under former law). Unexcused untimely filing of counterclaim not allowed. - Where defendant does not comply with Rule 12(a) (see now Rule 1-012 NMRA), nor seek leave of court to set up the counterclaim by amendment due to oversight, inadvertence or excusable neglect, as provided in Subdivision (f) (see now Paragraph F), the trial court properly disallows the filing of the counterclaim. Echols v. N.C. Ribble Co., 1973-NMCA-038, 85 N.M. 240, 511 P.2d 566 , cert. denied, 85 N.M. 229, 511 P.2d 555. Court has discretion to deny cross-claim. - Although both this rule and Rule 14 (see now Rule 1-014 NMRA) permit some discretion on the part of the court, there must be sound reason for the exercise of such discretion to deny the relief made possible thereunder. An abuse of discretion is said to occur when the court exceeds the bounds of reason, all circumstances before it being considered. GECC v. Hatcher, 1973-NMSC-003, 84 N.M. 467, 505 P.2d 62. Proper exercise of discretion. - When the cross-claim is brought seven years after judgment, and four years after affirmance on appeal, the trial court has sound reason for dismissing the cross-claim in the exercise of its discretion. GECC v. Hatcher, 1973-NMSC-003, 84 N.M. 467, 505 P.2d 62. Discretion exercised by weighing judicial economy against possible prejudice. - The decision whether to allow a cross-claim that meets the test of Subdivision (g) (see now Paragraph G) is a matter of judicial discretion. No precise standards have been formulated. Generally, most courts balance the interests of judicial economy and the general policy of avoiding multiple suits relating to the same events against the possibilities of prejudice or surprise to the other parties and decide the question of timeliness accordingly. GECC v. Hatcher, 1973-NMSC-003, 84 N.M. 467, 505 P.2d 62. Cross-claim liberally operated to further judicial economy. - The cross-claim rule should be given a liberal construction to vest full and complete jurisdiction in the court to determine the entire controversy and not merely a part of it. Hughes v. Joe G. Maloof & Co., 1973-NMCA-002, 84 N.M. 516, 505 P.2d 859. By settling related claims in single action. - This rule is a reflection of the federal equity practice and the general policy behind allowing cross-claims is to avoid multiple suits and to encourage the determination of the entire controversy among the parties before the court with a minimum of procedural steps. In keeping with this policy the courts generally have construed Subdivision (g) (see now Paragraph G) liberally in order to settle as many related claims as possible in a single action. GECC v. Hatcher, 1973-NMSC-003, 84 N.M. 467, 505 P.2d 62. Cross-claim part of original suit. - This rule contemplates an original action and, as the cross-claim must arise out of the transaction or occurrence that is the subject matter of the original action, the original complaint and the cross-claim constitute but one suit; therefore, even though the claim of the original plaintiffs has been dismissed, neither the pleadings nor parties have changed in connection with the cross-claim. The cross-claim that remains is part of the original suit, and not a new lawsuit. Hughes v. Joe G. Maloof & Co., 1973-NMCA-002, 84 N.M. 516, 505 P.2d 859. Cross-claims dismissed upon dismissal of complaint for lack of jurisdiction. - If the original claim in connection with which the cross-claim arises is dismissed for lack of jurisdiction, the dismissal carries with it the cross-claim, unless the latter is supported by independent jurisdictional grounds. Louis Lyster Gen. Contractor v. City of Las Vegas, 1971-NMSC-094, 83 N.M. 138, 489 P.2d 646. Venue change not available for cross-claim notwithstanding dismissal of original claim. - There is no right to a change of venue upon dismissal of the original claim under the concept of continuing jurisdiction as the cross-claim is ancillary to the original claim, to which it is related, and when the original claim is dismissed the court does not lose jurisdiction over a cross-claim even though there is no independent jurisdictional basis for the cross-claim. Hughes v. Joe G. Maloof & Co., 1973-NMCA-002, 84 N.M. 516, 505 P.2d 859. Cross-claim permitted to recover indemnity, contribution. - Payment might well be a condition to the judgment, but is not grounds for a dismissal of a cross-claim or a third-party complaint for the recovery of either indemnity or contribution. This rule and Rule 14 (see now Rule 1-014 NMRA) permit the determination of a third-party claim although a money judgment for indemnity must be subject to cross-claimant's actual loss, and a money judgment for contribution would be subject to the conditions of 41-3-2 NMSA 1978. Board of Educ. v. Standhardt, 1969-NMSC-118, 80 N.M. 543, 458 P.2d 795. Setoff available to assignee in cross-action. - Where a note, executed and delivered by the maker to payee, is after maturity transferred and assigned to transferee who becomes indebted to makers on other matters, and transferee assigns note to assignee, setoff which would have been available against transferee is also available to the makers in a cross-action by the assignee on the note. Turkenkoph v. Te Beest, 1951-NMSC-047, 55 N.M. 279, 232 P.2d 684. Law reviews. - For article, "The `New Rules' in New Mexico," see 1 Nat. Resources J. 96 (1961). For comment, "Assignments - Maker's Defenses Cut Off - Uniform Commercial Code §9-206," see 5 Nat. Resources J. 408 (1965). For article, "The Impact of the Revised New Mexico Class Action Rules Upon Consumers," see 9 N.M.L. Rev. 263 (1979). For article, "The Impact of Non-Mutual Collateral Estoppel on Tort Litigation Involving Several Liability," see 18 N.M.L. Rev. 559 (1988). For case note, "CIVIL PROCEDURE - New Mexico Adopts the Modern View of Collateral Estoppel: Silva v. State," see 18 N.M.L. Rev. 597 (1988). Am. Jur. 2d, A.L.R. and C.J.S. references. - 1 Am. Jur. 2d Abatement, Survival and Revival §27 et seq.; 8 Am. Jur. 2d Automobiles and Highway Traffic §§953, 957; 14 Am. Jur. 2d Carriers §1135; 20 Am. Jur. 2d Counterclaim, Recoupment and Setoff §§1, 2 et seq., 56 et seq.; 59 Am. Jur. 2d Parties §§96 et seq., 179 et seq.; 61A Am. Jur. 2d Pleading §§410, 414, 415. Agent's right to offset his own claim against collection made for principal, 2 A.L.R. 132. Counterclaim or setoff as affecting rule as to part payment of a liquidated and undisputed debt, 4 A.L.R. 474, 53 A.L.R. 768. Right to set off claim of individual partner against claim against partnership, 5 A.L.R. 1541, 55 A.L.R. 566. Availability as setoff or counterclaim of claim in favor of one alone of several defendants, 10 A.L.R. 1252, 81 A.L.R. 781. Right to set off claim of firm against indebtedness of individual partner, 27 A.L.R. 112, 60 A.L.R. 584. Attorney's lien as subject to setoff against judgment, 34 A.L.R. 323, 51 A.L.R. 1268. Right of stockholder to set off indebtedness of corporation against statutory superadded liability, 40 A.L.R. 1183, 98 A.L.R. 659. Setting up counterclaim, setoff, or recoupment in reply, 42 A.L.R. 564. Right of defendant in action for injury to person or property to set up by cross-complaint claim for injury to his person or property against codefendant, 43 A.L.R. 879. Right of transferor of stock in action against him by creditor to file cross-action against transferee, 45 A.L.R. 174, 141 A.L.R. 1351. Right in action for assault and battery to set off, recoup or counterclaim damages sustained by defendant in the affray, 47 A.L.R. 1095. Factor's right of setoff against proceeds of consignment, 52 A.L.R. 811. Right of defendant in action by undisclosed principal to avail himself of defenses or setoffs that would have been available in an action by the agent in his own right on the contract, 53 A.L.R. 414. Judgment as a contract within statute in relation to setoff or counterclaim, 55 A.L.R. 469. Payments by stockholders applicable upon double liability, 56 A.L.R. 527, 83 A.L.R. 147, 120 A.L.R. 511. Equitable setoff of claim of one person and claim of his debtor against another, 57 A.L.R. 778, 93 A.L.R. 1164. Right to voluntary dismissal of suit without prejudice before trial as affected by filing counterclaim after motion for dismissal, 71 A.L.R. 1001. Voluntary dismissal of cross-bill or counterclaim, right of defendant to take, 74 A.L.R. 587. What amounts to bringing of suit within limited time required by mechanic's lien statute, 75 A.L.R. 695. Right to set up by cross-complaint claim for damages on wrongful seizure of property, 85 A.L.R. 656. Right to dismissal as affected by filing of, or as affecting, cross-complaint, counterclaim, intervention and the like, 90 A.L.R. 387. Necessity of process against plaintiff when cross-bill or answer in nature of cross-bill comes in, 96 A.L.R. 990. Statutory right of setoff or counterclaim as affected by defendant's conduct inducing delay in bringing action until after maturity of the claim, or assignment to defendant of the claim, against plaintiff, 137 A.L.R. 1180. Claim barred by limitation as subject of setoff, cross-bill or cross-action, 1 A.L.R.2d 630. Claim for wrongful death as subject of counterclaim or cross-action in negligence action against decedent's estate, and vice versa, 6 A.L.R.2d 256. Cause of action in tort as counterclaim in tort action, 10 A.L.R.2d 1167. Sufficiency of cross-bill in partition action to authorize incidental relief, 11 A.L.R.2d 1449. Misrepresentation as to loan commitment on real estate as ground of action, counterclaim or rescission by vendee, 14 A.L.R.2d 1347. Failure to assert matter as counterclaim as precluding assertion thereof in subsequent action, under federal rules or similar state rules or statutes, 22 A.L.R.2d 621. Rights and remedies of tenant upon landlord's breach of covenant to repair, 28 A.L.R.2d 446. Permissibility of counterclaim or cross-action for divorce where plaintiff's action is one other than for divorce, separation or annulment, 30 A.L.R.2d 795. Right of counterclaim, setoff, and the like of defendant against partners individually, in action to enforce partnership claim, 39 A.L.R.2d 295. Right of defendant in action for property damage, personal injury or death, to bring in new parties as cross-defendants to his counterclaim or the like, 46 A.L.R.2d 1253. What statute of limitations governs action or claim for affirmative relief against usurious obligation or to recover usurious payment, 48 A.L.R.2d 401. Dismissal of plaintiff's case for want of prosecution as affecting defendant's counterclaim, setoff or recoupment, or intervenor's claim for affirmative relief, 48 A.L.R.2d 748. Waiver or estoppel with respect to debtor's assertion, as setoff or counterclaim against assignee, of claim valid as against assignor, 51 A.L.R.2d 886. Estoppel of defendant to deny plaintiff's corporate existence by filing counterclaim or cross-action against it, 51 A.L.R.2d 1449. Availability of setoff, counterclaim or the like to recover either penalty for usury in, or usurious interest paid on, separate transaction or instrument, 54 A.L.R.2d 1344. Validity, construction and effect of statute providing a "cooling off period" or lapse of time prior to filing of complaint, hearing or entry of decree in divorce suit, 62 A.L.R.2d 1262. Independent venue requirements as to cross-complaint or similar action by defendant seeking relief against a codefendant or third party, 100 A.L.R.2d 693. Proceeding for summary judgment as affected by presentation of counterclaim, 8 A.L.R.3d 1361. Right in equity suit to jury trial of counterclaim involving legal issue, 17 A.L.R.3d 1321. May action for malicious prosecution be based on cross-complaint or cross-action in civil suit, 65 A.L.R.3d 901. Appealability of order dismissing counterclaim, 86 A.L.R.3d 944. Right of party litigant to defend or counterclaim on ground that opposing party or his attorney is engaged in unauthorized practice of law, 7 A.L.R.4th 1146. Necessity and permissibility of raising claim for abuse of process by reply or counterclaim in same proceeding in which abuse occurred - state cases, 82 A.L.R.4th 1115. Who is an "opposing party" against whom a counterclaim can be filed under Federal Civil Procedure Rule 13(a) or (b), 1 A.L.R. Fed. 815. Claim as to which right to demand arbitration exists as subject of compulsory counterclaim under Federal Rules of Civil Procedure 13(a), 2 A.L.R. Fed. 1051. Joinder of counterclaim under Rule 13(a) or (b) of Federal Rules of Civil Procedure with jurisdictional defense under Rule 12(b) as waiver of such defense, 17 A.L.R. Fed. 388. Effect of filing as separate federal action claim that would be compulsory counterclaim in pending federal action, 81 A.L.R. Fed. 240. 50 C.J.S. Judgments §§ 776, 777; 67A C.J.S. Parties §§ 88 to 111; 71 C.J.S. Pleading §§ 167 to 176; 80 C.J.S. Setoff and Counterclaim §§1, 13, 27, 36, 61.