Amory Independent Tel. Co. v. Cox

• Decision Date: 03 February 1913
• Docket Number: 15,613
• Citation: 60 So. 641,103 Miss. 541
• Court: Mississippi Supreme Court
• Parties: AMORY INDEPENDENT TELEPHONE COMPANY v. R. M. COX

60 So. 641

103 Miss. 541

AMORY INDEPENDENT TELEPHONE COMPANY v. R. M. COX

No. 15,613

Supreme Court of Mississippi

February 3, 1913

APPEAL from the circuit court of Monroe county, HON. J. H. MITCHELL Judge.

Suit by R. M. COX against the Amory Independent Telephone Company. From a judgment for plaintiff, defendant appeals.

Section 2740 of the Code of 1906, referred to in the opinion, is as follows: "2740. The defendant in any 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 if any, which he may desire to and which lawfully may be set off against the demand of the plaintiff, and in default thereof, he shall not be permitted to use it on the trial."

The opinion states the facts.

Reversed and remanded.

Paine &amp Paine, attorneys for appellant.

Our position and the point we are attempting to make in this case is this: There is no statute in the state of Mississippi that requires a defendant to file a recoupment in the justice of the peace court. In other words we contend that a recoupment can be filed for the first time in the circuit court when the case has been appealed from the justice court. Further that recoupment is a creature of the common law and since it is not expressly governed by any statute it follows that it can be plead for the first time in the circuit court, where all cases are tried de novo.

The supreme court of this state has recognized the wide difference existing between recoupment and set off and has expressly held that recoupments are not dependent on statutory law but are controlled by the principles of the common law. See Raymond, Executor, v. State, 54 Miss. 563; Hayes v. Liquor Co., 55 So.

Of course section 2740 of the Code of 1906 clearly compells a defendant to file any matter in the nature of a set-off or which may be lawfully set off, in the justice court if the case originates there. We, however, contend that this section does not apply to defenses or pleas which are in the nature of recoupments but is limited strictly to set-offs.

Now let us examine the brief of counsel for appellee and see if it overturns the reasoning as set forth in the original brief of appellant, or if counsel for appellee have any authority to overturn the same.

We wish to call the court's attention to the fact that in neither of the Mississippi cases cited by counsel for appellee does the court, in delivering the opinion, say that counterclaims must be filed in the justice court or the same cannot be filed in the circuit court on appeal; but the court always uses the word "set-off." Counsel for appellee seem to think that the court in those two cass used the word counterclaim, which of course would embrace both set-off and recoupment; but no such word is used by the court. In other words, counsel for appellee in citing these cases and commenting on them and in other places throughout their brief continually use the words set-off and counterclaim as much broader and embraces both set-off and recoupment as shown by the very authority they cite to-wit: 34 Cyc. 629.

The section of the statute to-wit, 2740, of the Code does not say that counterclaims must be filed in the justice court; the section does not use the broad term nor does it imply the broad term counterclaim but only says, "any claim which may be lawfully set off." Of course if this section said all counterclaims must be filed in the justice court then we would be out of court--but as previously said the term counterclaim is not used in this section nor can it be read into the statute.

Counsel for appellee on page 4 of their brief say that recoupment set-off or counterclaim have been so long allowed that all three are treated under the same head, not only in Mississippi but also in other jurisdictions--yet don't cite a single Mississippi case to support this assertion and make this statement right in the face of 54 Miss. 562 Raymond v. State, previously cited by counsel for appellant.

The appellee in the case at bar could not claim surprise at the filing of the recoupment in the circuit court since it arose out of matters connected with the transaction on which appellee's cause of action is founded; if, therefore, appellee could not plead surprise and could not therefore be injured and if, further, no statute prohibited the filing of the recoupment for the first time in the circuit court, then the court below erred in refusing to allow the appellant to file this recoupment since appellant had the right at common law to do so and was therefore injured by this action of the circuit court.

Leftwich & Tubb, attorneys for appellee.

We say that as a matter of law this account sounding in damages, whether it be called a set-off, countrclaim, or recoupment, cannot be filed for the first time in the circuit court. It is true there are no pleadings proper in the circuit court but the statute prescribes certain conditions on which suit must be brought and prosecuted, and the suit can only be brought and prosecuted on those conditions. Section 2740 of the Code of 1906 is as follows:

"2740. (2411) Set-off filed on return day before trial.--The defendant in any 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, if any, which he may desire to, and which lawfully may be, set off against the demand of the plaintiff and, in default thereof, he shall not be permitted to use it on the trial. (See annotations to par. 754.)"

A similar statute found in section 1306 of the Code of 1871 was construed in the case of Marx v. Trussell, 50 Miss 498. The court, as one of the reasons for denying the set-off in the circuit court, assigned the question of costs. A different and better reason is given in Callahan v. Newell, 61 Miss. 437, which was, that to allow a cross-action in the circuit court would be to permit a recovery in an action begun there, and not one appealed from the justice of the peace. Of course a new case cannot be brought in the circuit court diffrent and independent of that brought in the justice court where the cause originates in the justice of the peace court. Counsel for appellant take an entirely too narrow view of our statutes on set-off and counterclaim and recoupment. Section 2740 of the Code, permitting the defendant in the justice court to bring a cross-action, says that the defendant on or...