Paddock v. Kibbe

2 Mich. N.P. 179

• Court: Circuit Court of the 15th Circuit of Michigan
• Decided: June 15, 1871
• Status: Published

Opinion

By the Court,

Upson, J.—

By the statute as it formerly was in the State of Now York, (and perhaps it is so at present,) if a defendant in Justicc’s Court neglected to plead or give notice of any set-off which might have been allowed him on the trial of the cause, he was forever thereafter precluded from maintaining any action to recover the same or any part thereof, and so were his assigns. 2 Cow. Treat., 748.

Our statute in such a case, 2 Comp. Laws, § 3728, only prohibits the party so in default from recovering any costs, in an action' subsequently brought to recover any such claim. But to entitle a defendant to set-off he must give notice of the same at the time of joining issue on a question of fact upon the merits of the cause— 2 Comp. Laws, § 3724—and he must plead his set-off the very first opportunity. Where a plaintiff brought two suits against a defendant, each being commenced at the same time and made returnable on ths same day and hour, the defendant on joining issue in the suit first called and tried, neglected to plead his set-off, and the other being then called, he offered to plead his set-off, but it was held that he was forever barred. 3 John's R., 428; 2 Cow. Treat., 730.

As set-offs can only be allowed in actions founded on demands which could themselves oe the subject of set-off according to law, it follows that until the plaintiff has declared in his action the defendant cannot know whether it will be on such a demand or not. 2 Comp. Laws, § 3723; 13 Wend., 139, 156; 2 Cow. Treat., 736. Besides ho is not required to plead a set-off until the time of joining issue. 2 Comp. L., § 3724. And under the N. Y. statute, to be a bar to a subsequent suit for the set-off, the plea that it was pr ought to have been set off in a former suit must be interposed at the time of joining issue, or it cannot be admitted on the trial. 2 Cow. Treat., 731; 10 John's R., 111, 246, 12 Id., 455.

In neither ot the suits maintained in the stipulation in this cause does it appear that at the time of joining issue, or on the trial of either, was any objection raised by any party, either by plea or otherwise, to the claim of the other party, nor was any set-off set up by either at the time of joining issue, or claimed on the trial.

The plaintiff in the second suit, who was the defendant in the suit first commenced, could not plead a set-off in the first suit until after the plaintiff had declared therein, which he did not do until after issue had been joined in the second suit and whether the burden of pleading, especially this matter, after the, joining of issue in the second suit was thrown upon the plaintiff or defendant in the first suit, when the issue was subsequently joined- therein, neither party availed himself of it, or raised any objections at the trial of either suit founded upon the question or matter now at issue. The issue then in the second suit seems to have been properly joined at the time it was joined and no question was raised growing out of or in reference to it on subsequently joining issue in the first suit,and going to trial, or on the trial of the second suit. The parties thus seem to have elected_to try each case separately on its own merits and not to liave insisted upon these provisions of the statute in relation to costs as affected by the neglect of a party to plead a set-off (§ 3728, 2 G. L.) in a former action; and the Justice in each case in finding for the plaintiff properly rendered judgment in his favor also for costs? and there is no error in either judgment by reason thereof.

In coming to this conclusion I have not seen fit to consider the question whether ' these suits could properly be reviewed in this Court on-a stipulation so made and filed.