ATTACHMENT: Bond — Action — Attorney Fee — Improper Allowance.
PAYMENT: Pleadings — General Denial. et seq.) Headnote 1: Headnote 2:
Headnote 1: 21 R.C.L. 116.
EVANS, J.
There is no appearance for the appellee. The record before us presents a clear case of miscarriage of justice. The plaintiff's petition set forth an itemized statement of his account. The only defense pleaded was a general denial. The 1. PAYMENT: defendant, as a witness, denied none of these pleadings: items, but impliedly admitted them. He general testified, however, that he paid them. No such denial. issue was tendered. The plaintiff's items were thus wholly undenied in the evidence, and in effect admitted. The court, however, submitted the issue on the general denial to the jury, and the verdict of the jury rejected the account in toto, except as admitted.
The testimony of the defendant that he had paid the account was, on the face of it, such manifest perjury that the resulting verdict could not have been rendered except through passion and prejudice. The defendant claimed 2. ATTACHMENT: attorney fees as a part of his damages in the bond: counterclaim, and evidence was introduced in action: support thereof before the jury, and was attorney included in the submission to the jury. An fee: additional attorney fee to the amount of $80 was improper allowed by the court, upon motion, and taxed as allowance. a part of the costs. We know of no rule that will permit either the duplication or splitting of attorney fees in this manner.
The judgment below is, accordingly, reversed. — Reversed.
De GRAFF, C.J., and ALBERT and MORLING, JJ., concur.