Stanton v. Warrick

¶1i appeal-^appellate*1 cour ‘ This suit was brought to recover a balance due on a settlement made November 25, 1865. The defendant filed a brief answer denying the claim of plaintiff and setting up a cross demand upon an account of date prior to the time of-settlement as alleged by plaintiff, except one item. The transcript of the justice shows that the plaintiff* proved a settlement in substance as alleged, but failed to deny .the defendant’s answer. The 'cause was submitted to the j ustice, who took time to consider of his judgment, and on the next day and before the decision was made, the plaintiff filed a reply denying the allegations of the answer and counter claim.

¶2In the District Court the plaintiff filed a reply, accompanied by his affidavit, stating the proceedings before the justice; that he did make a parol denial of the counter claim; that there was no proof, but of the plaintiff’s claim *77and that the counter claim was groundless, except as to the one item, and for that he gave credit on his claim for balance due on settlement; and also set forth other matters. The defendant moved the court'to strike the reply from the files, because there was none filed before the justice, and it was a new pleading and made new issues, and such pleading could not be filed in the District Court. This motion was overruled and defendant excepted and appeals, and now assigns the same as the only error.

¶3The objections to the filing of the reply relate alone to the right to file such new pleading in the District Court under any circumstances, and do not controvert the sufficiency of the showing. It has been already determined that such new pleadings may be filed upon making proper showing for the omission to file the same in the justice’s court.

¶4It may possibly be the law, that a party has the right to amend his pleadings on an appeal without other showing than required to amend pleadings in cases originally brought in the District Court. Rev. § 2977.

¶5But it is not necessary to decide that question in this case; we need do no more than affirm the ruling as heretofore made, which we do, and hold there was no error in overruling the motion to strike the reply from the files in this case. See Wilson v. May, supra.

¶6Affirmed.