Marx v. Trussell

Tarbell, J., delivered the opinion of the court. This cause originated before a justice of the peace. The action was on open account. There was a judgment for the plaintiff in the action, and the defendant appealed to the circuit court. The same result followed in the latter court, when the defendant in the action prosecuted a writ of error. The question for the decision of this court is, whether the defendant in the action, having failéd or neglected to file with the justice of the peace a written statement of his set off against the demand of the plaintiff, was entitled to amend by filing it in the circuit court, The Code, § 1305, directs the mode of bringing suit before a justice of the peace, and then follows § 1306, which provides that “ the defendant in any such action shall, on or before the return day of the summons, and before the trial of the case, file with the justice of the peace, the evidence of debt, statement of account, or other written statement of the claim which he may desire to set off against the demand of the plaintiff, and in default thereof, he shall not be permitted to use it on the trial.” It is understood from the record, that the defendant made no attempt to file or to give evidence of any set off before the magistrate* but wholly, and, inferentially, purposely omitted to file or present his counterclaim in that court. Nothing appears, otherwise ; and the first time that a set off is referred to is in the circuit court* which court ruled that the statement could not then be filed, and rejected evidence offered in proof of -the items of the account thus sought for the first time to be set up in the cause. It is the opinion of this court, that the provisions of § 621 of [500] the Code, relative to the amendment of pleadings and proceedings in the circuit court, do not apply to the case made in the record under examination. This view is strengthened by the language of § 1334, which provides that “ appeals to the circuit court shall be tried anew, in a summary way, without pleadings in writing,” evidently intending that the parties should be confined, on appeal, to the issues made before the magistrate. But this remark is not intended to deny to the circuit court power to amend issues made and set off filed in the justice’s court. The Code, § 1306, is positive and prohibitory in its language and intent in the case stated therein. , A contrary rule might operate harshly, by throwing the costs of both courts upon the plaintiff in the action, and this might be the sole object of the defendant in neglecting to file a statement of his set off with the justice of the peace. Judgment affirmed.