H. C. Meyer Co. v. Vasquez , 10 Teiss. 33 ( 1913 )

His Honor

JOHN ST. PAUL,

rendered the opinion and decree of the Court, as follows:

The plaintiff complains that under the circumstances of the case it should be remanded rather than that judgment of non-suit be entered against him.

The defendant complains that the Court failed to give effect to evidence in the record tending to show that plaintiff’s claim was in part paid; and it is true that there is some evidence along those lines in the record; but no plea of payment was filed below, though an attempt was made to supply such, a plea in this Court.

Opinion and decree, February 24th, 1913.

Under the circumstances we think that the interests of justice would be best subserved by remanding the case in order to permit both sides to make the necessary amendments and pleas and to administer proof in connection therewith.

Order.

It is therefore ordered that the' judgment appealed from and our former decree affirming the same be set aside, and it is now ordered that this ease be remanded to the Court a qua for further proceedings according to law, with leave to the parties to amend their pleadings and adduce additional evidence pertinent to the issues, to-wit: with leave to plaintiff to allege and prove, if it can, timely recordation and service of a sworn account, and to the defendants to plead and show payments, if they can; the evidence heretofore offered and filed to lie considered as part of the record without the necessity of re-offering, and the costs of these appeals to await the final disposition of the case.