Waldron v. Merseal
142 S.W. 751
Mo. Ct. App.
1912
Check Treatment
CAULFIELD, J.

(after stating the facts). — I. Defendants assign as error the action of the trial court with reference to the first two pleas of set-off which were filed in the circuit court. It is sufficient to say of this that after these two pleas of set-off had been stricken from the record by the court, the defendants filed another pleading by leave of court, and the case went to the jury upon this last pleading. By so doing they waived their right to avail themselves of any supposed error committed by the. court in striking*384out the previous pleas. [Heman v. Glann, 129 Mo. 325, 335, 31 S. W. 589; Fuggle v. Hobbs, 42 Mo. 541.]

It is true that in the case of Houtz v. Hellman, 228 Mo. l. c. 664, 128 S. W. 1001, our Supreme Court uses languagé indicating that a distinction should be made between the effect of a plaintiff’s action in pleading over after his petition has been held bad and the effect of a defendant pleading over after his defenses are held bad. But it is clear that that language is not applicable here. The defendants pleaded over after their plea of set-off, not their defense, had been held bad. The set-off was an affirmative demand and not of the nature of a defense or plea in bar. [Jones v. Moore et al., 42 Mo. 413, 419.] In respect of it defendants occupied the position of plaintiffs. [Bank v. Harris, 54 Mo. App. 156, 159.] They had the option to bring it into this suit to extinguish in part or in whole plaintiff’s claim, or to sue upon it independently. [Wright v. Salisbury, 46 Mo. 26, 28; Jones v. Moore et al., 42 Mo. 413, 419.] A failure to use it here would not have prevented suit being brought upon it in a separate action. [Hall v. Clark, 21 Mo. 415, 416.] It might have been abandoned before being submitted to the jury and afterwards sued upon separately. [Wright v. Salisbury, supra.] As to it the defendants occupied as favorable a position as a plaintiff would have occupied in respect of his petition. The same choices were open to them. They might have gone out of court as to their set-off, or they might have stood thereon, suffered judgment and appealed, or they might have pleaded over and gone on. They chose to follow the last course and thereby they just as necessarily waived all exceptions to the action of the court on their former pleas as a plaintiff would have done by pleading over after his petition had been held bad on demurrer.

*385II. Defendants assert that the verdict was insufficient because it contained no finding on their set-off. This may be accepted as true, but it does not follow that the judgment must be reversed on that account. The verdict in favor of the plaintiff was for the amount of the note and interest. To that extent it was proper and correct, for the execution of the note and defendants’ original liability thereon is conceded, and the evidence of payment was not at all convincing. There is nothing whatever to suggest; passion or prejudice on the part of the jury. The failure to find on the counterclaim was in all likelihood due to the ignorance of the jury as to the proper procedure and the failure of the court to direct the form of the verdict. Defendants could not have been prejudiced by such failure to a greater extent than the amount of the counterclaim, and the error was necessarily cured by the remittitur, which was for the full amount of the counterclaim.

III. There is no merit in defendants’ complaint that “no new judgment was entered, less the amount of the remittitur.” The judgment from which this appeal was taken was entered after the remittitur was made and was for the amount of the verdict, less the amount of the remittitur.

The judgment is affirmed.

Reynolds, P. ,/., and Nortoni, J., concur.