
    B. S. Campbell and Wife v. Evansville, etc., Railroad Co.
    Trial — Discontinuance by Plaintiff Does Not Affect Counterclaim.
    A defendant is not prejudiced by an order discontinuing the plaintiff’s case as he may proceed to trial on his counterclaim as if no order of discontinuance had been entered.
    APPEAL PROM CHRISTIAN CIRCUIT COURT.
    November 9, 1871.
   Opinion by

Judge Peters:

In this case the following order was made: “On motion of plaintiff’s attorney it is ordered that this cause be discontinued,” from which appellants who were a part of the defendants in the court below have appealed; insisting that their answer presented a counter-claim and the court below could not, by ordering a discontinuance of the original suit, dismiss their counter-claim.

By Sec. 401, Civ. Co., it is provided that “in a case where a set-off, or counter-claim has been presented, the defendant shall have the right of proceeding to trial with his claim, although the plaintiff may have dismissed his action or failed to appear.

It is most palpable that if appellants have presented a counterclaim by their pleading, the order referred to did not prevent them from proceeding with it to trial. Nor was it necessary to set aside the order discontinuing the action made on motion of appellees to enable them to proceed with their counter-claim if they had presented one. Appellants were not prejudiced by the orders of the court discontinuing the appellee’s suit. Nor in overruling the motion to set aside said order.

Landes & Clark, for appellant.

Feland & Evans, for appellee.

Wherefore the judgment is affirmed.  