Wynn v. Simmons

STONE, J.— The Code (§ 2365) declares, that “if suit be brought for such amount, [the amount of which the court has jurisdiction,] and a less sum be recovered, unless the amount is reduced below that of which the court has jurisdiction, by a set-off successfully made by the defendant, the judgment must be set aside, and the suit dismissed, unless he, or some one for him, make affidavit,” &c. In the case we are considering, there is no bill of exceptions setting forth the nature of the defense. A motion to dismiss the suit, based on the fact that the recovery was under fifty dollars, was overruled in the court below. The record does not inform us the ground on which the motion was overruled. "We have shown, in the above extract, that there is one contingency in which it is the duty of the court to overrule a motion to dismiss, although the recovery may be less than fifty dollars ; namely, when by a set-off successfully made the recovery is thus-reduced. This, too, in the absence of an affidavit, such as is provided for in section 2365 of the Code. Indulging, as under our rules we are required to do, every reasonable intendment in favor of the correctness of the ruling in the court below, we feel it our duty to presume, there was a good and sufficient reason for the action of the primary court. Judgment of the circuit court affirmed.