Gunsaulis v. Cadwallader

Day, J. ^ounteSiaim. It was proved, upon the trial, that the claim for rent of granaries, sued upon before the justice, is the same as that set up in the answer in the action above referred to in the Mahaska District Court. In the trial in the Circuit Court no evidence of plaintiff’s claim was introduced, except the concession of defendant’s counsel, that plaintiff was entitled to recover twenty dollars on his account, if defendant should fail in the defenses set up in the second and third counts of his answer. In finding for the plaintiff the sum of twenty dollars, the court must have found that these defenses were unavailing. In this holding we think the Circuit Court erred. We need not determine whether the offer to confess judgment in this case, continuing to be extended after the counter-claim was filed, was an offer to confess judgment for twenty-six dollars, after satisfying the defendant’s counter-claim. If it was such an offer, then it follows, as a matter of course, that ¡the acceptance of the offer, and judgment thereon, is a satisfaction of the counter-claim, and a bar to any further action ¡thereon. If it was not such an offer, but simply embraced [51] the claims set up by plaintiff’s petition, then it was the right and the duty of the defendant either to withdraw the counterclaim before final submission, or to introduce evidence in support of it, if he had any to offer. Section 2847 of the Code, (3130 of the Revision) provides: “The defendant may, also, at any time before the final submission of the cause to the jury, or to the court, when the trial is by the court, dismiss his counter-claim without prejudice.” Section 3127 of the Revision, (2844 of the Code,) respecting the dismissal of the plaintiff’s action, was construed in Hays v. Turner, 23 Iowa, 214, and it was there held that the plaintiff cannot take a non-suit after the case has been finally submitted to the court. The reasoning of that case applies to the dismissal of a counter-claim. No effort was made to withdraw the counterclaim, nor was there any intimation that it was not to be concluded by the judgment, until two days after the judgment was rendered. The case of Schmidt v. Zahensdorf, 30 Iowa, 498, seems to be conclusive of this question. We quote from that case as follows: “The plaintiff, in his petition, averred the facts constituting his right to, and made a claim against defendants for, use and occupation of the land in controversy, to the extent of $300. This claim was denied by the defendants. With the issue thus made, the case was submitted to the court. The judgment entry recites that, there being no evidence offered by either party as to the value of the rents and profits, the same is not considered, and no judgment hereby rendered touching the same. The action for the rents and profits was not dismissed, nor the claim therefor withdrawn. The defendants having been thus once compelled to litigate the question and prepai'e for this defense, they have a right to judicial immunity from being again required to answer the same claim. The judgment will be so modified as to make the same final against plaintiff’s claim for rents and profits.” In the case at bar, also, the counter-claim was embraced in the issue, at the time of the final submission and judgment, and [52] tbe defendant is entitled to immunity from any further action thereon. The withdrawal of the claim, after judgment, cannot affect the status created by the judgment. The judgment of the Circuit Court is Reversed.