Barnes v. McDaniels

Cole, J. At the close of the trial, the court instructed the jury, among other things, that the claims for damages, set up as a set-off by the defendant in his answer, were not denied, and that they were, therefore, to be taken as true. After the jury returned a verdict for the defendant, the counsel for the plaintiff each made affidavit, in substance, that they had prepared a reply in denial of the defendant’s claims for damages and set-off as alleged in his answer, and had, before the commencement of the trial, laid the same on the clerk’s desk for filing and called his attention to it, and they supposed and believed it was filed, until after the jury was sent out to consider of their verdict. Upon [382] this showing the court set aside the verdict and ordered a new trial. We cannot say there was any error in so doing. See Newell v. Sanford, 10 Iowa, 396; Alger v. Merritt, 16 id. 121; Caffrey v. Groome, 10 id. 548; Head & Metzer v. Langworthy, 15 id. 235; Schumaker v. Gelpcke, 11 id. 81; State v. Tomlinson, id. 401; Jewett & Lovejoy v. Miller, 12 id. 85; Templin v. Iowa City, 14 id. 59 ; Baker v. Mygatt, id. 131; Wilhelmi v. Thorington, id. 537; Shepherd v. Brenton, 15 id. 81. Affirmed.