Clark v. Barnes

7 Iowa 6

• Court: Supreme Court of Iowa
• Decided: October 15, 1858
• Status: Published

Opinion

Stockton, J.

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We think it was not neccessary for the transcript of the justice to be amended, to show that the plaintiff’s claim was denied on the trial before him. Where there was a trial on the merits, it will be presumed that there was such a denial as put the party upon proof of truth of his claim. It may well be doubted whether, the application to amend the transcript in other particulars, considering the circumstances under which it was made, was not properly overruled. We are, however, inclined to the opinion, that the motion for a new trial should have been sustained. From the transcript of the justice, sent to the district court, it would seem that the set-off filed by defen. dant, on the trial before him, amounted to only one dollar and seventy-five cents. The justice states in his affidavit, that the defendant in reality filed a set-off amounting to twenty-three dollars. The filing of this set-off is not shown by the transcript, and the same is not sent up by the justice to the district court. It might ■ be questionable whether, upon the state of facts as shown by the transcript, the defendant could in the district court, have introduced any other set-off, than that set forth in the transcript, amounting to one dollar and seventy-five cents. Under the circumstances, we think justice requires that a new trial should have been granted, to enable the defendant to have the docket and transcript of the justice amended so as to show the true amount of the set-off introduced, on the trial before him. This much was neecessary in order to a trial ou the merits, .and to insure that the same cause of action be tried in the district court, that was tried before the justice. If it appeared to us, that the defendant had been permitted to prove up all of his set-off in the district court, as offered before the justice, we should be inclined to affirm the judgment; as the contrary, however, appears, we think the judgment should be roversed? and a new trial awarded.

Judgment reversed.