Calhoun v. Citizens Banking Co.

38 S.E. 977, 113 Ga. 621, 1901 Ga. LEXIS 330

Opinion

Little, J.

1. A plea of set-off is a cross-action, and after it is filed the defendant is, in any event, entitled to prove his case and have judgment against the plaintiff, if it is authorized by the evidence. This right the plaintiff can not defeat by dismissing his action ; nor should the court on its own motion dismiss or nonsuit the case, and thus deprive the defendant of his right to proceed and make out his cross-action against the plaintiff. Civil Code, § 3754 ; Reedy v. Helms, 54 Ga. 121; Crane v. Barry, 60 Ga. 363; Lewis v. Wall, 70 Ga. 648.

2. When a plea of set-off has been filed in a case, it becomes a part of the record thereof, and as such may, in the submission of a motion by counsel, be so treated, without actually “ exhibiting ” it to the court for inspection.

Judgment reversed.

All the Justices concurring.