Campbell v. Mayhugh , 54 Ky. 142 ( 1854 )

Judge Crenshaw

delivered the opinion of the Court.

To the suit at law, brought by Mayhugh against Campbell, upon the note for $385, two pleas were pleaded by Campbell in bar of the action. Either of these pleas, if true, was a bar to the suit. They were not replied to by Mayhugh, and must be taken as true;

In this state of the pleading, the judgment of the court was: “The plaintiff failing to reply to the first and second pleas of defendant, filed herein on the calling of the cause for trial, it is ordered that this suit be dismissed at the costs of the said plaintiff.” This judgment, under the state of pleading, though informal, was, in substance, a complete bar to the action. The defendant, for want of replication, was entitled to a judgment'in bar, and _ such we understand to be the informal order of the court. The suit was dismissed at the costs of the plaintiff for want of replication, which is the same, in substance, as if the judgment had said in form: “The plaintiff having failed to reply to the first and second pleas of defendant, filed herein, it is considered by the court that the plaintiff take nothing by his suit, but go hence without day, and that defendant recover against the plaintiff his costs herein expended.” The pleas were in bar; the plaintiff failed to answer them, and the suit was dismissed at his costs. This is substantially as much a bar to the suit, as the most formal entry would make it. The judgment is neither in substance nor in form a non-suit, but a judgment in bar.

'2. If there be :a judgment in ¡bar to a suit on a note, it cannot !be used as a set-off in any future ■ controversy between the parties.

The principle decided in the case of Harris vs. Tiffany & Co. 8 B. Monroe, 226, is not applicable to this case. The judgment pleaded in bar in that case, was a simple judgment or order of dismissal with costs, upon the motion of the plaintiffs in the suit, by their attorney, with leave to withdraw the note sued on. The defendants in the suit had neither appeared nor plead to the action, and the leave to withdraw the note implied that the dismissal was not to operate as a bar.

The judgment of the court in the action upon the note for $385, having been a judgment in bar, it follows that Mayhugh had no right to a set-off for any part of the note against the judgment in favor of Campbell, nor to a decree against Campbell upon the same. We think there can be no question that Mayhugh did not show himself entitled to relief against the judgment in favor of Campbell before the justice of the peace.

Wherefore, the decree is reversed, and the cause remanded, with directions that complainant’s injunction be dissolved, and his bill and amended bills be dismissed.