
    Case 117 — EQUITY
    November 17, 1881.
    Cason v. Cason.
    APPEAL 'FROM HARRISON CHANCERY COURT.
    A plaintiff, by joining issue upon a counter-claim of the defendant, waives all right to object to that pleading, because the caption does not contain the words “ answer and counter-claim,” as required by subsection 4, section 97, Civil Code. That section applies where the plaintiff has failed to reply.
    'C. W. WEST FOR APPELLANT.
    '1. The defendant was not entitled to judgment on his counter-claim, as the caption of his answer did not contain the words “ answer and counter-claim,”
    '2. It was error to allow the defendant to file the amended answer.
    8. The proof did not authorize the recovery.
    L. M. MARTIN for appellee.
    1. The proof authorized the recovery.
    -2 It was proper to allow the amended answer to be filed to conform the pleadings to the proof.
   ■JUDGE PRYOR

delivered the opinion of the court.

Subsection 4 of section 9,7, .chapter 4, of the .Civil Code, provides, that “a defendant shall not have judgment upon a set-off or counter-claim, unless the caption of the answer contain the words answer and- set-off, or the words answer ahd counter-claim; but a misdescription in the caption of the nature of the defendant’s claim shall not prevent him from having judgment; nor shall a plaintiff have judgment upon a counter-claim, unless the caption of his reply contain the words reply and counter-claim.”

The object of this provision is to apprise the adverse party that a claim is set up either in the nature of a set-off or counter-claim, upon which a judgment is sought, and to prevent him from being misled by denominating the pleading an ■answer only. In the present case the counter-claim is styled answer of defendant.

This answer asks a judgment over, and contains all the averments necessary to make it a counter-claim, and the .appellant (plaintiff below) replied to the counter-claim, and on that pleading an issue was formed.

The appellant could not have been misled in such a state of case, and he waived all right to object to the pleading after issue joined. No motion was made in the court below to require the character of the pleading to be given in the caption; but appellant responded to the counter-claim, and •on the trial a judgment was rendered against him.

If there had been no reply to the answer, and a judgment had gone by default for the counter-claim, then the provision of the Code would apply, as the caption had the effect of inducing the plaintiff to believe that no judgment over was sought. We think the proof authorized the recovery.

The judgment below is affirmed.  