West v. Littleton

Boyce, J.,

delivering the opinion of the court:

“Appeals shall be allowed from judgments, given by justices of the peace, to the Superior Court, as follows: First, from every judgment given by the justice, without referee trial, to an amount exceeding five dollars, exclusive of costs, the party against whom such judgment shall be given, may appeal; or in case any part of the plaintiff’s demand, or of the defendant’s counter-claim or set-off, exceeding five dollars, is disallowed or defalked by the justice, such plaintiff or defendant, may appeal; second, from every judgment given, upon the report of referees, to an amount exceeding fifteen dollars, exclusive of costs, the party against whom such judgment is given, may appeal; or in case any part of the plaintiff’s demand or of the defendant’s counter-claim or set-off, exceeding fifteen dollars, is disallowed or defalked, such plaintiff, or defendant, may appeal.” Rev. Code 1915, § 4034.

As was said in Pepper v. Warren, 2 Marv. 225, 43 Atl. 91, and adhered to in Burris v. Boone, 4 Boyce, 148, 86 Atl. 730:

“The meaning of 1 defalked ’ is a lopping off, or a reduction, to some extent, of a claim which is proved, whether it be from a claim made and proved by the plaintiff, or from a set-off made and proved by the defendant. * * “So that where it may appear to our satisfaction—that is, sufficiently in legal contemplation—that the plaintiff has stated the amount of his claim * * * and the justice after hearing the proofs and allegations on both sides has rendered a judgment in favor of the defendant for costs, and thus rejected the claim of the plaintiff, in the language of the statute, disallowed his claim, to an amount exceeding five dollars; in such case an appeal will lie to this court.”

It was held in Fanning v. Miller, 4 Boyce, 527, 89 Atl. 737, that—

“the fact of a disallowance or lopping off of such a claim must be disclosed by the record, either in the form of an affirmative statement to that effect, or by statements in the record from which such fact may be conclusively deduced.”

In that case the record disclosed that after the plea of set-off was filed nothing further was done with it; that testimony was heard by the referees in support of the plaintiff’s claim alone, and that the matter of the defendant’s counter-claim or set-off was neither presented to, considered, disallowed or defalked by the referees. The appeal was dismissed.

In the case now before the court, the defendant brought forward his account against the plaintiff and pleaded it as a set-off, as he was required to do, in order to prevent his being forever barred from recovering the same. The referees, notwithstanding the defendant’s plea of set-off and the proofs and allegations of both parties, found for the plaintiff for the full amount of his demand, thereby rejecting the defendant’s counter-claim.

It is the- opinion of the court that this case is clearly distinguished from the Fanning case, and that the reasonable inference to be drawn from the statement in the record or transcript filed is that the referees heard the allegations and proofs of the parties as to their respective claims, and disallowed the defendant’s claim, which being in excess of fifteen dollars, the appeal should be allowed.

The motion to dismiss is denied.