Amory Independent Telephone Co. v. Cox, 60 So. 641

60 So. 641 | Miss. | 1912

Smith, C. J.,

delivered the opinion of the court.

This suit was begun by appellee in the court of a justice of the peace, upon statement of account showing a balance due him of eighty-one dollars and seventy-five cents . When the cause came on for trial in the circuit court upon an appeal thereto, appellant asked leave of the court to file a notice of recoupment, setting forth certain damages alleged to have been sustained by it, and which it desired to have deducted from the amount of appellee’s claim. Appellee objected to the filing of this notice on the ground that under section 2740, Code 1906, it should have been filed in the justice of the peace court, and could not be filed in the circuit court for the first time, which objection was sustained by the court, and leave to file the notice was denied.

Section 2740 of the Code of 1906 has no application to a claim interposed by way of recoupment. The terms “set-off” and “recoupment” have at law separate and well-defined meanings. “Recoupment” is distinguished from “set-off” in several particulars: “(1) It arises out of matters connected with the transaction or contract on which the plaintiff’s cause of action is founded. (2) It matters not whether it be liquidated or unliquidated. (3) ■ It is not dependent on any statutory regulation, but it is controlled by the principles of the common law.” Raymond v. State, 54 Miss. 562, 28 Am. Rep. 382; Myers v. Estell, 47 Miss. 4; Hayes v. Slidell Liquor Co., 99 Miss. 583, 55 South. 356. To which may be added that its use is defensive only.

This defense could have been availed of by appellant by the introduction of testimony in support thereof without its having filed this notice, the filing of which, while probably not improper, was wholly unnecessary; for; unless otherwise provided by statute no written pleadings are necessary in the court of a justice of the peace, and on appeal therefrom to the circuit court a. case is tried “anew, in a summary way, without pleadings in writing.” Code 1906, section 86. As. was said in Callahan v. Newell, 61 Miss. 437: “Appeals from judgments of justices of the peace are to be tried anew, as if never tried before, and any evidence may be set up for the first time in the circuit court. . . . Everything merely defensive is involved in the suit before the justice, and, although not disclosed before him, is involved in the case on appeal, and cannot be said to be something brought into it in the circuit court which was not in it before.”

Had the court simply declined to permit this notice to be filed, without more, appellant would have no ground for complaint, for it would not, in that event, have been deprived of its right to avail itself of this defense by introducing testimony in support thereof; but' this was not what occurred. Leave to file the notice was not refused, as shown by tbe bill of exceptions,' because tbe filing thereof was unnecessary, but for tbe reason (1) that notice of such a claim could not be filed in tbe circuit court for tbe first time; and (2) because leave to file it was not requested until after tbe impaneling of tbe jury. This constituted, in effect, a ruling that tbe defense could not be made, because the notice thereof was filed too late, and necessarily implied that appellant would not be permitted to introduce evidence in support thereof. After this ruling, it became not only unnecessary, but in fact improper, for appellant to offer such evidence.

Reversed and remanded.