Jordan v. Herrick

59 So. 809 | Miss. | 1912

Smith, J.,

delivered the opinion of the court.

Appellant instituted this suit to recover of appellees a sum of money alleged to be due him by them. One of appellees’ special pleas alleged, by way of set-off and recoupment, that appellant owed them a sum of money larger than the amount sued for, and asked judgment over against him for the difference between this amount and the amount of his claim. Appellant’s replication to this plea was simply a general denial of the facts therein set forth. Judgment over having been rendered for appellees against appellant for the balance alleged by them to be due them, he appeals to this court, and contends that, when appellees’ plea was filed, the account-alleged to be due them by him was barred by the statute of limitations, and that, consequently, the court below erred in permitting the jury to render a verdict over against him.

In order that the statute of limitations .may be availed of as a defense, it must be pleaded, so that the other party to the litigation may have an opportunity of avoiding it by setting up facts which remove the bar of the statute. Hines v. Potts, 56 Miss. 346. This appellant admits to be the general rule, but contends that since, in the case at bar, appellees were entitled to set up their claim against him by way of recoupment, even though it might be barred by the statute of limitations, pleading-the statute would have availed him nothing; consequently, it was neither necessary nor proper for him to do so. It is true that pleading the statute would have availed appellant nothing, in so far as appellees’ right to use their set-off merely as a defense to his demand is concerned; but that did not relieve him from the necessity of pleading it, if he desired to set it up as a bar to their demand for judgment over against him. The same reason for pleading the statute exists, when it is sought to be used as a bar to a defendant’s demand for judgment over against a plaintiff, as would exist if the defendant, instead of setting up his demand by way of counterclaim, had instituted an original suit against the plaintiff to recover it, and consequently the same rule which applies in the one case must also necessarily apply in the other.

Affirmed.