Jot v. Huit

31 Iowa 22

• Court: Supreme Court of Iowa
• Decided: January 27, 1870
• Status: Published

Opinion

Day, Ch. J.

— In rendering judgment in favor of defendant, without proof of the amount of his demand, the court erred. The defendant, with reference to his set-off, was placed in the attitude of a plaintiff. Upon him was the burden of proving the justness and amount of his demand. If the plaintiff had proceeded with his action, it is clear that the defendant could not have recovered upon his set-off without proof. Upon what principle does the withdrawal of the plaintiff’s claim exonerate the defendant from the necessity of proving his ? There having been a trial in the justice’s court, a denial of the defendant’s set-off is px-esumed. Brock v. Manatt, 5 Iowa, 270 ; Heath v. Coltenback, id. 490. And even if. the plaintiff, in x-espect to the defendant’s set-off, is to be considered in default, still the. defendant, in order to recover more than a nominal sum, must prove his demand, and the plaintiff is entitled to cross-examine bis witnesses. B. & M. R. R. Co. v. Shaw. 5 Iowa, 464; Loeber v. Delahaye & Co., 7 id. 478.

The judgment of the coxxrt below is

Revex-sed.