The judgment of the court was pronounced by
Rost, J.The plaintiff sues for his wages as clerk; the defendant has filed a general denial, and claims in reconvention the sum of $2G7, the balance of an account annexed to his answer.
The judgment of the district court was, that the plaintiff recover of the defendant the sum of $291 55, with interest from the judicial demand. The defendant has appealed; and his counse^l asks that the judgment be reversed, and the cause remanded, on the ground that the district court has not passed upon the reconventional demand. No evidence was introduced by the defendant in support of that demand; and there is nothing in the record to show that it was serious.
We are of opinion, that the omission complained of should have been brought to the notice of the court below, before the judgment became final; and that, as this has not been done, it would be unjust to subject the plaintiff to delay and costs, for the purpose of litigating a claim, which we are bound to consider as fictitious. Hown v. Grailhe, 1 Ann.
Had application been made to the district court to amend the judgment, the most favorable decision which the defendant could have obtained would have been a judgment of non-suit; by which he would be placed in the position he now occupies. The judgment is not otherwise complained of.
It is therefore ordered, that it be affirmed, with costs.