Siegel Market v. Billings

210 N.W. 749, 203 Iowa 190

Opinion

Evans, J.

There is no appearance for the appellee. The record before us presents a clear case of miscarriage of justice. The plaintiff’s petition set forth an itemized statement of his account. The only defense pleaded was a general denial. The defendant, as a witness, denied none of these items, but impliedly admitted them. He testified, however, that he paid them. No such issue was tendered. The plaintiff’s items were thus.wholly undenied in the evidence, and in effect admitted. The court, however, submitted the issue on the general denial to the jury, and the verdict of the jury rejected the account ■ in toto, except as admitted;

The testimony of the defendant that he had paid the account was, on the face of it, such 'manifest perjury that the resulting verdict could not have been rendered except through passion and prejudice. The defendant claimed attorney fees as a part of his damages- m .the . , . , . , . , , , . counterclaim, and evidence was introduced'm support thereof before the jury,, and was included in the submission to the jury. An additional attorney fee to the amount of $80 was allowed by the court, upon motion, and taxed as a part of the costs. We know of no rule that will permit either the duplication or splitting, of..attorney fees in this manner.

The. judgment .below-is-, accordingly, reversed. — Reversed.

Dp Grave, C. J., and Albert and Morling, J j., concur.