Automobile accident. Defendant appeals from judgment in favor of plaintiff. This case was submitted on briefs and affirmed without opinion on February 9, 1943. The motion for rehearing is denied in the original cause of action.
On pages 2 and 3 of appellant's brief the questions involved in the appeal are set forth and no reference is made to the counterclaim or the determination of this question by the lower court. We find that it is mentioned at the end of appellant's brief, and upon examination of the record conclude that appellant is entitled to recover upon the counterclaim for damages in the sum of $530; and is entitled to a setoff for that amount against the sum of $5,000 for which the court ordered judgment for plaintiff upon the verdict. Consequently the judgment must be modified by reducing the net amount of plaintiff's recovery to the sum of $4,468 and the costs taxed at $252.65. Therefore the mandate is vacated and the following mandate entered:
Mandate vacated; and judgment modified as stated in the opinion and affirmed as modified. Neither party to have costs, disbursements or attorney's fees on the appeal.