Fink v. Bruihl
Supreme Court of Missouri
Error to Second District Court. I. Defendant’s counter-claim was in the nature of a new suit, and was the suit of defendant against the plaintiffs, which suit plaintiffs could not dismiss. (Gen. Stat. 1865, ch. 165, § 147; Riley v. Carter, 3 Humph. 230; Waterm. Set-off, § 613, note d.) II.
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Error to Second District Court. I. Defendant’s counter-claim was in the nature of a new suit, and was the suit of defendant against the plaintiffs, which suit plaintiffs could not dismiss. (Gen. Stat. 1865, ch. 165, § 147; Riley v. Carter, 3 Humph. 230; Waterm. Set-off, § 613, note d.) II. In the construction of said section 47 due regard should be had to the eighth section of chapter 148, Gen. Stat. 1865, on set-off, which provides, “If there be found abalance due from the plaintiff to defendant, judgment shall be rendered for the defendant for the amount, together with costs.” If the use of…
1Opinion of the CourtBliss, Judge
In this suit the defendant acknowledged' the indebtedness, but set up a set-off greater than the debt. After the evidence'was closed the plaintiff asked leave to dismiss his suit, or in effect offered to suffer a nonsuit; but the court refused to permit him to go out of court, and the cause was submitted to the jury, who gave a verdict for defendant. The only question presented is whether the plaintiff had a right, under the circumstances, to suffer a nonsuit. Of this there can be no question under our statute. Set-offs were unknown to the common law, but have been provided for by statute…
2Cases cited2 opinions
- Nordmanser v. HitchcockSupreme Court of Missouri · 1867
- Cummings v. PrudenMassachusetts Supreme Judicial Court · 1814
3Cited by9 opinions
- Benoist v. MurrinSupreme Court of Missouri · 1871
- Pullis v. Pullis Bros. Iron Co.Supreme Court of Missouri · 1900
- Lanyon v. ChesneySupreme Court of Missouri · 1907
- Scott v. ReesSupreme Court of Missouri · 1923
- Hamlin v. WalkerSupreme Court of Missouri · 1910
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