Handley v. McKee

• Decision Date: 24 January 1911
• Docket Number: 2,686.
• Citation: 70 S.E. 94,8 Ga.App. 570
• Parties: HANDLEY v. McKEE.
• Court: Georgia Court of Appeals

70 S.E. 94

8 Ga.App. 570

HANDLEY v. McKEE.

No. 2,686.

Court of Appeals of Georgia

January 24, 1911

Syllabus by the Court.

"The plea of 'set-off' is a cross-action, and after it is filed the defendant is in any event entitled to prove his case, and have judgment against the plaintiff, if it is authorized by the evidence. This right the plaintiff cannot defeat by dismissing his case."

In a suit on a promissory note, where there is a set-off or counterclaim filed as a defense, and the case is then by consent referred to an auditor, and before the auditor the plaintiff objects to a consideration of the plea of set-off on the ground that it is not a legal set-off and contemplates affirmative equitable relief, and the ruling of the auditor is adverse to plaintiff, and no exception is taken to this ruling, and the case is thereupon considered on the merits by the auditor, and the plaintiff does not renew his objection to the validity of the set-off by excepting to the auditor's report, he is concluded by the judgment of the auditor on this question and his acquiescence therein. He cannot for the first time except to the judgment and finding of the auditor on this point before this court.

The writing set out in the bill of exceptions, and alleged to have been the verdict which the jury would have returned into court, but for the erroneous decision of the court in allowing the entire case to be dismissed by the plaintiff was never received and published in court. It therefore cannot, in a legal sense, be considered as the verdict of the jury, and this court cannot properly make this writing the verdict of the jury, by directing that the trial judge now receive and publish this writing as the verdict. The case must be tried again, without any reference to this writing and as though there had been a mistrial declared.

Error from City Court of Fitzgerald; E. Wall, Judge.

Action by Miles McKee against R. V. Handley. Defendant filed a set-off. The court allowed plaintiff to dismiss the whole case, and defendant brings error. Reversed.

Haygood & Cutts and A. J. McDonald, for plaintiff in error.

Clayton Jay, Otis H. Elkins, and Crum & Jones, for defendant in error.

HILL C.J. (after stating the facts as above).

1. It is expressly provided by the Code that the plaintiff may dismiss his case at any time, either in term or vacation, so that he does not thereby prejudice any right of the defendant. If claims by way of set-off, or otherwise, have been set up by the answer, the dismissal of the petition shall not interfere with the defendant's right to a hearing and trial on such claims in that proceeding. Civ. Code 1895, § 4970. The plea of set-off is a cross-action, and after it is filed the defendant is in any event entitled to prove his case and have judgment against the plaintiff, if it is authorized by the evidence. This right the plaintiff cannot defeat by dismissing his action. Calhoun v. Citizens' Banking Co., 113 Ga. 621, 38 S.E. 977, and cases there cited. This was a common-law action on a promissory note, and a defense of set-off or counterclaim had been allowed by the auditor, and no exception had been taken to this judgment, and the items of set-off or counterclaim had been fully considered by the auditor, and he had filed his report thereon. Unquestionably the court erred in allowing the plaintiff to dismiss the entire case. The defendant, having filed a set-off which had been allowed, was entitled to have the verdict of the jury on his set-off or counterclaim as a cross-action, and no dismissal by the plaintiff or order of the court allowing the plaintiff to dismiss his suit could deprive him of this clear statutory right.

2. It is insisted by the attorney for the defendant in error that the items and transactions sought to be set...