¶1Appellant’s counsel maintains that judgment should have been rendered in appellant’s favor upon the ground that the cause of action set forth in the counterclaim was on contract, but if the demand was one sounding in tort and was not connected in any way with the transaction in which the note was given and so was not pleadable upon 1he ground of respondent being a nonresident, the objection in that regard was waived by failure to raise the question by demurrer or reply, or at all, till after verdict.
¶2As we view the case it may be conceded for the purposes of the appeal that the trial court construed the counterclaim correctly as to its being on a demand sounding in tort. The statute clearly rules the situation in appellant’s favor. There is no need to refer to case law in respect to the matter.
¶3There is no controversy but that the counterclaim stated a good cause of action. If it were not pleadable in the action, the facts in that regard appearing by the answer, the proper course would have been to demur on that precise ground. Subd. 6, sec. 2658, Stats. (1898). Since the facts did not so appear the proper course was to raise the question by the *283reply. Sec. 2660, Stats. (189S). That section provides that “when any of the objections to a counterclaim mentioned in sec. 2658 do not appear upon the face of the answer the objection may be taken by reply. If not so taken, either by demurrer or reply, the plaintiff shall be deemed to have waived the same,” except as to some objections not material to be considered here.
¶4Want of knowledge of the facts in time to set them forth in the reply in the first instance might be good ground for allowing an amendment upon the facts being disclosed, if seasonably applied for, but there was no application for leave to amend here. We see no escape from the conclusion that defendant’s motion for judgment for the balance between the amount found due on the note and the amount of the damages assessed in defendant’s favor should have been granted.
¶5By the Court. — The judgment is reversed, and the cause remanded with directions to render judgment in the defendant’s favor in accordance with this opinion.