Kuhn v. Bone

10 Iowa 392 | Iowa | 1860

Baldwin, J.

The appellants claim, that the court erred in affirming the judgment of the justice against plaintiffs, because such judgment was rendered upon a set-off claimed 'by defendant after the principal suit was dismissed. The plaintiffs had a right to dismiss their suit at any time before the hour of trial, without the consent of defendant, unless the latter had claimed a set-off before such dismissal. Code section 1801. Cross demand or set-off must be made, if at all, at the time the answer is put in. Code section 2285. The plaintiffs are advised that such set-off is claimed only by answer of defendant, which must be in writing, and filed by thé justice, or if made orally, the substance thereof must be written down by the justice in his docket. The answer of defendants was neither filed, nor was the character of defendant’s set-off entered in the justice’s docket at the time plaintiffs dismissed their suit. The conversation between plaintiffs’ agent and defendant’s attorney at a casual meeting in tbe justice’s office, at an Lour when the parties were not required to be there, and the declaration of defendant’s attorney as to what he was going to plead or prove, was not a proper matter for the justice to note as part of the record of the cause. It is the putting in of the answer either in writing or orally, that gives to the plaintiffs the knowledge that an offset had been claimed. The intention of the defendant to do so, as declared by his attorney, is not sufficient; it must be filed and the items made a part of the record.

Judgment reversed.