Askew v. . Koonce

24 S.E. 218, 118 N.C. 526

• Court: Supreme Court of North Carolina
• Decided: February 5, 1896
• Status: Published

Opinion

Faircloth, C. J.:

This action is instituted to recover from the defendant money collected by him as an attorney for plaintiff. The matter was referred by consent, and to the report several exceptions are filed, all pointing to the findings of fact which this Court cannot review. The account covers 'a period of several years. Only one exception is relied upon before this Court, and looking at the report we can see no error in that. The answer is verified but the replication is not. We can see no need for the replication in this case, as every allegation of new matter in the answer, not relating to a counter-claim., is to be deemed controverted by the adverse-party as upon a direct denial or avoidance, as the case may require. Code, Sec. 268. It was suggested here that a part of defendant’s answer was a counter-claim, and not being denied by a verified replication, the defendant was entitled to a credit in that respect. It is beyond our ability to see how a counter-claim could lie to recover money already in the defendant’s hands sought to be collected by the plaintiff.

Unless a defendant has'some matter existing in his favor and against the plaintiff, on which he could maintain an independent action, such claim would not be a counterclaim. We see no error in the trial below.

Affirmed.