Blount v. Rick , 107 Ind. 238 ( 1886 )

Zollars, J.

Appellee sued appellant upon a promissory note. Appellant pleaded a set-off. To this plea appellee replied a set-off.

Appellant’s demurrer to this reply was overruled. Upon the verdict of the jury judgment was rendered against appellant for the amount of the note. The evidence not being in. the record, we can not tell whether the amount of appellee’s set-off equalled that of appellant, or whether the jury found each to be groundless. Appellant seeks to make the question here, that a claim acquired by the plaintiff after the commencement of his action, but before the plea of set-off is filed by the defendant, can not be replied as a set-off to a set-off. The record does not present that question for decision. It is averred in the reply that when the plea of set-off was filed by appellant, he was, and still is, indebted to the appellee, over and above the note in suit, $82 upon a book account for professional services rendered and medicines furnished, etc. A bill of particulars was filed with and as a part of the reply. This bill of particulars shows that the services were rendered and the medicines furnished by appellee in 1881. It is sáid in argument that this account was assigned to appellee by her husband after this suit was commenced. There is. nothing in the pleadings, nor in the record, to show that fact, if it is a fact. The reply shows that the services were rendered and the medicines furnished by appellee. The aver-ments do not preclude the idea that appellant was indebted to .appellee upon the account when this action was commenced. The bill of particulars,- which is a part of the. reply, shows that he was so indebted at that time, and for a long time prior thereto. In construing pleadings, written instruments and accounts filed therewith, in obedience to the requirements •of the statute, R. S. 1881, section 362, must be looked to, and in many instances they are controlling. Carper v. Gaar, Scott & Co., 70 Ind. 212; Hurlburt v. State, ex rel., 71 Ind. 154; Bayless v. Glenn, 72 Ind. 5; Crandall v. First Nat’l Bank of Auburn, 61 Ind. 349; Mercer v. Hebert, 41 Ind. 459.

The record presents this question, and this question only: May a person, having a note and an account against another, sue upon the note, and reply the account as a set-off against .an equal amount pleaded-as a set-off by the defendant ? That question is answered in the affirmative by the cases of House v. McKinney, 54 Ind. 240; Turner v. Simpson, 12 Ind. 413; Reilly v. Rucker, 16 Ind. 303; Curran v. Curran, 40 Ind. 473; R. S. 1881, section 367. The demurrer to the reply was properly overruled.

Appellant’s learned counsel contend that the court below erred in its instructions to the jury, and in refusing those asked by him in behalf of appellant. He, however, really concedes that neither the instructions given, nor those refused, are properly in the record. The clerk below copied into the transcript what purport to be instructions given and refused, but there is nothing to show tha'fc they'were filed, as required by section 533, R. S. 1881. In order that instructions may be a part of the record without a bill of exceptions, they must be thus filed, and the rceoi’d must affirmatively show that they were so filed. That is not shown by the record before us, neither were the instructions brought into the record by a bill of exceptions. O’Donald v. Constant, 82 Ind. 212; Elliott v. Russell, 92 Ind. 526; Olds v. Deckman, 98 Ind. 162; Landwerlen v. Wheeler, 106 Ind. 523.

Filed March 31, 1886.

It results from the foregoing that the judgment must be affirmed, at appellant’s costs. It is so ordered.