
    Brock v. Manatt.
    Where in an action before a justice of the peace, on an account, the defendant filed a set-off of a like nature; and where the transcript of the justice returned to the district court, did not show any oral or written pleadings in the cause, but stated that the plaintiff did not object to the defendant’s bill of particulars, or set-off; and where on the trial of the cause, in the district court, the court ruled, that the set-off was admitted by the state of the pleadings ; Sold, That the ruling of the court was correct,
    
      Appeal from the Poweshiek District Court.
    
    Monday, December 7.
    This was an action commenced before a justice of the peace, and brought upon a book account. The defendant filed a set-off, of the same nature. The only question in the case is, whether the justice and the district court were correct in holding the defendant’s set-off to be admitted by the state of the pleadings. The justice’s return, or record, shows the following state of facts : There were no written pleadings, but the parties filed their accounts; the justice makes no entry showing thé substance of any oral pleadings; the plaintiff introduces witnesses, who testified, and by whom he attempted to prove his demand; and the justice says that he “fails, with a few exceptions ; and plaintiff did not object to defendant’s bill of particulars or set-off; so, therefore, defendant recovers for all his demand in his set-off,” yet in striking the balance, in order to render judgment, he allows the defendant five dollars less than his claim. The plaintiff appeals.
    
      J. C. Knapp and Win. H. Beevers, for the appellant.
    
      Clm-k & Brother, for the appellee.
   Woodward, J.

In Milburn v. Sinnamon, 4 G. Greene, 309, it was held, that, in an action before a justice, when there are no written pleadings, and the justice does not enter the substance of oral pleadings, and there is a trial, a denial and issue will be presumed; and, since then, this court has acted upon this doctrine. The question then is, whether the magistrates’s entry, that the plaintiff did not object to defendant’s bill of particulars, is a controlling circumstance, under the facts of the case, as they appear in the justice’s transcript. An argument against this has been drawn from the fact, that the defendant introduced witnesses, from which counsel would infer that he proved his account by them. But this is not a matter of course, for they may have been used only to reply to the plaintiff’s claim. And other statements of the record, make it appear, almost conclusively, that this was the case. It is also urged that the justice did not, in fact, allow the defendant the full amount of his .claim, which he would have done, had he taken it as admitted. But it is easy to see that this may have been, and most probably was, the result of a clerical mistake only. When the cause, however,, was tried in the district court, it is clear that that court ruled that the set-off was admitted by the state of the pleadings. And, on the whole, we are of the opinion that there was no error in this. The suggestions, before made, go to support this view. And it may be added, that if the justice had made no entry concerning the pleadings, the case would have stood upon the basis of that of Milburn v. Sinnamon. But the entry which he actually makes, must be taken to mean, that there was not even an oral pleading-denying the defendant’s claim.

The judgment of the district court must be affirmed.  