Matula v. Fitzgerald , 4 Willson 109 ( 1890 )

Opinion by

White, P. J.

March 19, 1890.

§ 70. Appeal from justice’s court; new defenses cannot be permitted in the appellate court; plea of misjoinder of parties held bad; case stated. This suit was brought in justice’s court to recover a balance due upon two accounts, both accounts being consolidated and embraced in one general account. This account was verified by the affidavit of Matula, who swore that he owned the same and that it was just and unpaid, etc. Defendant made counter-affidavit that the claim was unjust, and that a greater portion of the same was barred by the statute of limitations. The justice found in favor of defendant’s plea of the statute of limitations, and rendered judgment for plaintiff for the amount of said account which was not barred by the statute. Plaintiff, Matula, then appealed to the county court. In the county court, defendant Fitzgerald pleaded a misjoinder of parties and actions, and moved the court to dismiss the appeal. This motion was granted, and the appeal dismissed. Defendant was not entitled to plead new defenses in the county court, and plaintiff’s exceptions to his .new defenses should have been sustained. [2 Civil Cas. Ct. App., §§ 442, 625; 1 Civil Cas. Ct. App., § 239; 2 Civil Cas. Ct. App., § 23.] There was in fact no misjoinder of parties nor causes of action; plaintiff swore he owned the two accounts. The case should not have been dismissed, but should have been tried de novo on the pleadings which the parties had made in the justice’s court.

Reversed and remanded.