Rife v. Henson

Mathews J.

delivered the opinion of the Court.

In this case the plaintiff claims $250 for improvements made on public lands, which sum he alleges the defendant agreed to pay to him for said improvements.

The answer contains a general denial and a plea in re-convention, in which upwards of 300 dollars are claimed. The cause was submitted to a jury, and on the evidence adduced they found a verdict for the plaintiff for the sum of 45 dollars, whereon judgment was rendered and defendant appealed.

Where an order to take depositions mádeata’previous tiff'^rwhose^in-«tanceitwasmade, takes out a commission in pursu-submits his’inter-cross ones are n-led, it is sufficient to be read m evidence, altho5 the usual affidavit has not been made urge that the mb-ject of the contract between the ^e^contra'r void| ed%¡mséifSofTO¡ts amount to plead in re-convention, and augment the loo1 >donarsUtand upwards, and be thereby entitled to an appeal, such defence will be deemed as coming with an ill grace from the party using it, and be disregarded.

The record contains a bill of exceptions to the reading of . . y . ° answers to interrogatories of witnesses taken by commission, on the ground that the affidavits1 required by law did not precede said commissions. It appears that at a term of the-Court previous to that at which the trial of this cause took . place, a general order had been entered on the minutes to take depositions, and that cross interrogatories in pursuance thereof were filed, to the witnesses whose testimony was desired by the plaintiff, at whose instance the commissions . issued. The Judge a quo was of opinion that the circumstances dispensed with the necessity of the affidavit, otherwise required, and in this we concur with him. On the hearing * 7 » óf the cause before the appellate Court, the counsel for the . appellant urged a new means of defence, alleging that the , -, , ,, , ... .T1.. . whole contract between the parties is void as being in rela-*-’onan subject: because the laws of the United States prohibit all settlements on public lands. This de- . fence comes most ungraciously from him after his plea m réconvention, by which alone this Court has jurisdiction of case- He claims 365 dollars, basing his claim on the same subject matter, alleged by the plaintiff. Such a de- - , , , . tence cannot be tolerated at this time.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.