Simon v. Myers & Marcus
68 Ga. 74
Ga.
1881
Check Treatment
Jackson, Chief Justice.

The plaintiff in error sued the defendants in error for $2,150.00. Defendants pleaded a set-off for $687.86. The jury found against the entire claim of plaintiff and for the entire claim of defendant, and judgment was entered accordingly. A motion was made to arrest this judgment and for a new trial, and error is assigned on the denial of both motions by the court. The grounds on which these motions are based may be reduced from the number contained in them to comparatively few, and thus analyzing and reducing them, we shall consider them as they arise in order of time.

1. The set-off was filed at the adjourned trial term of the court, and not at the first term, but the names of counsel were marked on the docket in defence of the suit at the first term, though answer was not marked by the judge opposite the case. Was this equivalent to filing a plea of the .general issue at the first term?

Section 3458 of the Code declares that this plea shall be considered as filed in all cases which are answered to at the first term. The marking or entry of the names of defendants’ counsel, we think, is equivalent to answering to the cause. When and where the practice has been to call the appearance docket, whenever the judge saw the names of counsel marked for defendants, he would mark “answer,” and this has always been the practice in this state. So it has always been held the equivalent of answer or actually the answer to the case where it has not been the practice to call the docket. It cannot alter the rule that the judge did not call the appearance docket. The object is to let plaintiff’s counsel know that the case is defended, and when they see counsel marked on the docket, they have that notice given them as well by the marking counsels’ names in defense, as in the little word of the judge, “answer.” It is the duty of plaintiff’s counsel to look at the docket of their cases, and then they have the notice.

*78There has been no repeal of this law in words, nor do we think that any thing in the constitution by implication repeals it. Of course, when made out and actually filed, it should be under oath, when required now in certain pleas, but that does not affect the legal effect of answering on the docket. The plea of the general issue thus being in the eye of the law in, it follows that the same may be amended by building on it any other plea at any stage of the cause. Code, §3479. Even a plea of non est factum may be built upon it by amendment. 61 Ga., 233, 245. Any substantial plea may be added. 59 Ga., 160.

2. No actual or formal notice of the plea is necessary. When filed it must set out the particulars of it, so that the plaintiff may have notice when he sees the plea of what items of set-off it contains. Such we understand to be the meaning of Judge McCay in 45 Ga., 164. There was no plea of set-off at all in that case, and hence no notice at all, and no diligence could have ascertained what plaintiff had to rebut. Here the plea was filed.

So, too, we think-is the idea of Judge Charlton in T. U. P. Charlton’s R., p. 227. The bond, the matter of the set-off, was not set out in any pleading. And such is the Code, §3469, and the statute there codified. Cobb’s Digest p. 487.

It is true that this should be done when the answer is filed according to the statute and Code last cited, but the answer may be amended, as we have seen, by additional pleas under later enactments, and then the set-off in full with all the particulars may be pleaded- and filed. Of course the court should continue the case if plaintiff is surprised or has not had notice, and put the defendant at costs or impose other terms; and so the judge in the opinion, on the motion for a new trial states that he would have done, but no motion to continue was made.

3. The court was right not to allow plaintiff’s action to be dismissed when the defendant had filed a plea of set-off. Code, §2907.

*794. In this state any number of pleas, however contradictory, may be filed ; and, if so, why may not plaintiff’s whole account be found barred by the statute of limitation, or otherwise illegal, and defendants’ set-off be sustained. The set-off is nothing but a cross-action. 8 Ga,, 188-9. The plaintiff may dismiss his action, but cannot thereby interfere with the defendants’ cross-action, or set-off. Code, §2907. Can he fail, or refuse, to prove his account or offer his promissory note in evidence, and thereby accomplish its defeat ? Will the law permit him to do indirectly what he cannot do directly? If he cannot dismiss his action so as to defeat defendant’s recovery on the set-off, can he have his claim defeated otherwise and accomplish the same purpose ? We think,not. Therefore, whatever may be the decisions of courts of other states, or the law elsewhere than in Georgia, in this ■ state the law must be that, though the plaintiff fail to make out any of his claim, and be defeated in it, the defendant may go on and make out his and recover on it.

The court acquires jurisdiction by the suit of plaintiff, and then is required to hold it until justice is done between the parties. To enable defendant to put in his cross-action, the plaintiff must first sue; but after he has done that and the cross-action is filed, the court will not relax its hold on the case until their mutual rights are adjusted according to law; and if it be judicially ascertained by verdict that the plaintiff has failed to show any right to any thing as against defendant, and yet that defendant has proved that he has rights against the plaintiff, judgment will be entered accordingly.

This is the law of this state, and a just law it is. It should not be otherwise. Why, when one sues another, should the latter be forced to bring suit against the former separately, though he may know that the plaintiff’s claim is unjust? Why not permit him to institute his claim and say, “ I owe you nothing. I have paid all I owe you, but you owe me and I demand that you pay me the *80debt?” But be the law just or unjust, politic or unwise, we think that we have shown it to be our law, and it must be enforced.

5. The last point to be considered is, that the defendants had their claim against plaintiff in suit before plaintiff sued them, and at the time plaintiff sued them, and dismissed it afterwards and then filed this plea of set-off; and it is insisted that, as they did not have it in such shape that they could bring their cross-action when they were sued (the claim being already in suit), they could not dismiss afterwards and file the plea in the suit at bar. This point struck my mind with force, when presented, but, on reflection, I do not think it maintainable; and my brethren, I believe, were not much troubled about it at any time. It was certainly a claim, or debt, existing at the commencement of this suit; it was not traded or transferred to anybody else, or pledged, or pawned, or parted with as collateral security, or put beyond the control of the defendants. They had sued it, but no plea of set-off, or other cause, prevented them from dismissing it when they chose to do so. They had the costs of that suit to pay — that is all. That suit was dismissed before this cross-suit was brought, so that the two were not pending at the same time. Suppose they had been brought as separate suits, it is clear that on the dismissal of the first the second could be brought, and the 2894th and 3476th sections of the Code only apply to the pendency of two suits, for the same cause of action, at the same time.

In reviewing the whole case, on all the assignments of error, we conclude that the court below has applied the law to the many phases which the complications of fact made for adjudication, without error, and that, too, when new and interesting legal questions had to be solved in the rapidity of motion incident to circuit practice; and the judgment rendered by the presiding judge is approved and affirmed.

Judgment affirmed.