The Federal Reporter. Volume 4: Cases Argued and Determined in the Circuit and District Courts of the United States. October-December, 1880. Page: 35
xiv, 928 p. ; 23 cm.View a full description of this legislative document.
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MEYErB V. GATEUS. 85
MaYR, Wuis & Co. v. GATEUs.
(Utrouit Court, W. D. Tennesse. - , 1880.)
i. PaAeonc-SET-Ol -EemTCT or Drex ss BY THE PLAIrTIa.-
Where the defendant has filed a plea of set-off, if the plaintiff volun-
tarily dismisses his suit, as he may under the Tennessee statute, the
defendant may elect to proceed on his plea of set-off in the capacity
of plaintiff, and the cause will be tried as if he had brought an inde-
pendent suit on his counter claim.
George GiUham, for defendant.
L. Lehman, for plaintiffs.
HAMMOND, D. J. At a former day of this term the plain-
tiffs dismissed their suit, and now the defendant, who had
filed a plea of set-off, moves to re-instate the case upon the
trial docket for the purpose of trying the issues made upon
his plea of set-off. The Tennessee Code, in the chapter reg.
ulating the trial and its incidents, provides that "the plaintiff
may, at any time before the jury retires, take a nonsuit, or
dismiss his action, as to any one or more defendants; but, if
the defendant has pleaded a set-off or counter claim, he may
elect to proceed on such counter claim in the capacity of a
plaintiff." T. & B. Code, 2964. The chapter on pleadings in
civil actions, in the article on the plea of set-off, had provided
that "if the debt or demand so offered to be set off exceed
the amount of the plaintiff's demand, such excess being found
by the jury, judgment shall be rendered against the plaintiff
in favor of the defendant for such excess, and all costs." T.
& B. Code, 2929.
In construing this latter section the supreme court of Ten-
nessee has repeatedly determined that if the plaintiff fails in
his action to establish his claim, so that the judgment is that
the defendant owes the plaintiff nothing, the defendant can
recover nothing on his set-off, because he is allowed a judg-
ment for the excess only. And it has been held that the pro-
visions of section 2964, above quoted, have not changed this
rule of decision. Whether this be the correct construction of
the statute or not, it is too well settled to be now disturbed by
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Boyle, Peyton. The Federal Reporter. Volume 4: Cases Argued and Determined in the Circuit and District Courts of the United States. October-December, 1880., legislative document, 1881; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc36333/m1/49/: accessed July 18, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.