
    Barnes v. McDaniels.
    New trial: failure to plead : oversight. Where, under direction of the court, a verdict was returned for the. defendant on a set-off pleaded hy him and not denied hy plaintiff, it was held not erroneous for the court to grant a new trial on showing of plaintiff’s attorneys that they had, before thé commencement of the trial, prepared a replication in denial to which they called the attention of the clerk, and which they supposed had been filed until after the jury had retired.
    
      Appeal from Zomsa District Oowrt.
    
    Monday, December 11.
    Action by tbe plaintiff as assignee of a subscription to tbe stock of a railroad company, made by tbe defendant to recover an alleged balance due thereon. The defendant, by his answer, set up matter in avoidance of plaintiff’s claim, and also affirmative matter by way of set-off. A trial to a jury resulted in a verdict for defendant, which wa,s set aside by the court. The defendant appeals.
    
      Sprague c& Riley for the appellant.
    
      Hurley <& Hale for the appellee.
   Cole, J.

At the close of the trial, the court instructed the jury, among other things, that the claims for damages, set up as a set-off by the defendant in his answer, were not denied, and that they were, therefore, to be taken as true. After the jury returned a verdict for the defendant, the counsel for the plaintiff each made affidavit, in substance, that they had prepared a reply in denial of the defendant’s claims for damages and set-off as alleged in his answer, and had, before the commencement of the trial, laid the same on the clerk’s desk for filing and called his attention to it, and they supposed and believed it was filed, until after the jury was sent out to consider of their verdict. Upon this showing the court set aside the verdict and ordered a new trial. We cannot say there was any error in so doing. See Newell v. Sanford, 10 Iowa, 396; Alger v. Merritt, 16 id. 121; Caffrey v. Groome, 10 id. 548; Head & Metzer v. Langworthy, 15 id. 235; Schumaker v. Gelpcke, 11 id. 81; State v. Tomlinson, id. 401; Jewett & Lovejoy v. Miller, 12 id. 85; Templin v. Iowa City, 14 id. 59 ; Baker v. Mygatt, id. 131; Wilhelmi v. Thorington, id. 537; Shepherd v. Brenton, 15 id. 81.

Affirmed.  