Smith v. Snodgrass , 4 Greene 282 ( 1854 )

Opinion Try

Greene, J.

This suit was commenced before a justice of the peace by E. Smith against W. and A. Snodgrass. Plaintiff recovered judgment, and defendants appealed to the district court. It appears that before tbe justice tbe defendants filed a set-off, which was orally denied by plaintiff, but this fact not appearing in the original transcript, filed by the justice, he subsequently and within the time directed for returning the transcript, filed an amended transcript, showing plaintiff ’s reply and denial of defendants’ set-off. This amended transcript was ruled out by the district court, and judgment was rendered in favor of defendants.

Among the objections urged to this proceeding, the only one to be considered is, did the court err in rejecting the amended transcript? Where a justice ir. _the first instance neglects to make a full return, he clearly is authorized to correct or perfect such retorn, by sending up an additional or more complete transcript. This he may do when the omission is discovered, or upon ralef oin tire district court to perfect Ms return.

Hie amended transcript in this case was important.. It showed' that the items of plaintiff’s set-off had been denied before the justice. But from the instructions to the jury in the district court, we infer that they were taken as true without proof, because ¿he defective transcript before the court, did not show that they had been denied before the justice. We are of the opinion, therefore, that the court erred in excluding the amended transcript.

Q. Bates and D. 0. Finch, for appellams. J. F Jewett, for appellee.

Judgment reversed.