Frisby v. Rittman

66 Mo. App. 418, 1896 Mo. App. LEXIS 79

• Court: Missouri Court of Appeals
• Decided: May 4, 1896
• Status: Published

Opinion

Ellison J.

Plaintiff was the owner of two mules, which had been mortgaged to defendant by the party from whom plaintiff had purchased them. Defendant instituted a suit in replevin against the party who was. holding the mules for plaintiff. He disclaimed any interest in the controversy and plaintiff was made a defendant in that suit. The suit resulted in defendant’s recovering the mules from this plaintiff. He afterward foreclosed his chattel mortgage and the mules brought at the foreclosure sale $84.50 more than the debt under the mortgage. Plaintiff thereupon instituted this action against defendant, before a justice of' tbe peace, for the surplus, and recovered judgment on appeal in the circuit court. The suit was begun before-the justice on March 14, 1894. On April 17, a change-of venue was taken to another justice. On April 20, a motion to dismiss was filed by defendant and overruled,, and the cause set for trial on April 27. On April 21, the defendant (plaintiff not being present) appeared before the justice and filed a fee bill in the replevin suit aforesaid, as a set-off. When the day of trial, April 27, arrived, plaintiff appeared, but defendant made default, and the justice, after hearing the-evidence, found for plaintiff. The set-off was not considered. Afterward, defendant appealed to the circuit-court, where he filed what was termed an amended answer, setting up the fee bill aforesaid as a set-off. Plaintiff filed a motion to strike out that part of the-answer containing the set-off. It should be stated that the set-off consisted of the costs which were adjudged, in defendant’s favor in the replevin suit aforesaid. The-court heard evidence in support of the motion to strike out which showed that plaintiff had no knowledge of the filing of the set-off. It is provided by section 6205 Revised Statutes, 1889: “To entitle a defendant to set-off any demand, he must give notice thereof in court, either verbal or written, before the jury is sworn, or the trial submitted to the justice; and when the set-off. ■or counterclaim is founded upon an instrument of writing, executed by tbe plaintiff, or by bis testator, or intestate, or upon an account, be must at tbe time •of giving sucb notice file with tbe justice sucb instrument, or a bill of items of sucb account.”

There was nothing in tbe evidence or in tbe record to show that plaintiff bad any notice of tbe set-off, at the time it was filed, or prior to tbe trial before tbe .justice. It was therefore properly stricken out in tbe •circuit court. Tbe mere filing of a set-off with tbe .justice is not sufficient. There should be a written or verbal notice given to tbe plaintiff. Strictly speaking, the notice, if verbal, should be noted on tbe justice’s •docket. If written, a copy should be filed with' the papers. In this case, there was not only no notice, but tbe paper was filed at a time when tbe plaintiff was not in court, and who, in point of fact, did not know •of its being filed.

An examination of tbe instructions given for plaintiff, and those refused for defendant, shows that tbe court did not commit error in tbe action taken. Those for plaintiff are not subject to tbe criticism ■offered by defendant. We can not see where any question of res adjudicata finds place in this case. Tbe court having properly disposed of defendant’s set-off, it left little in tbe case, and what it did leave was fully and properly submitted to tbe jury in tbe instructions given for tbe parties. Under these circumstances, we ■can only affirm tbe judgment.

All concur.