Chapter 515: Tender, Pleading, and Setoff

At any time before the service date specified by the court on the summons, the defendant may tender to the attorney who brought the action the amount of the debt and costs, and such tender shall be a bar to any further proceedings in the case.

In any action the defendant may file a confession of the plaintiff's right to recover certain real estate, or a certain amount of debt or damages, and plead to the residue of his claim; and if the plaintiff further prosecutes the action, and fails to recover more than is so confessed, the defendant shall recover his costs from the date of the confession.

No special plea shall be required in a civil action, except a plea of title to real estate in actions in municipal courts; but any defense may be proved under the general issue, upon a brief statement thereof being filed in such time as the court may order.

When the defendant pleads one or more special pleas the plaintiff may reply thereto all such matters as may be material in answer to or avoidance of the matters alleged therein, and for that purpose may file as many separate replications as the case requires.

If, upon the trial of the issues upon such pleadings, either party maintains by his evidence such of the matters by him pleaded as would constitute an answer to or avoidance of the matters pleaded by the other party such issue shall be considered to be maintained by the party producing such evidence, notwithstanding other matters alleged in his pleadings may not be sustained by the proof.

In actions for libel or slander, under the general issue, the defendant may prove, in mitigation of damages and to rebut evidence of actual malice, that the writing or words complained of were the repetition of common report, and that the conduct of the plaintiff was such as to create suspicion of the truth of the matters therein charged against him.

If there are mutual debts or demands between the plaintiff and defendant at the time of the commencement of the plaintiff's action, one debt or demand may be set off against the other.

No debt or demand shall be set off as aforesaid unless a right of action existed thereon at the beginning of the plaintiff's action.

Mutual debts or demands, though contingent, existing between a person deceased and another person, when due, may be set off in actions by or against the administrator.

If the defendant's debt or demand is founded on a bond or specialty with a penalty, only the amount equitably due shall be set off.

The defendant may plead such setoff, or give notice thereof with the general issue, describing the debt or demand with the same certainty as is required in a declaration.

The plaintiff is entitled to one continuance in case of a setoff, unless a particular statement of the debt or demand, with a notice that the defendant will set off the same, has been served on the plaintiff ten days before the sitting of the court.

When a setoff has been pleaded or filed judgment shall be rendered in favor of the party to whom the balance is due for the amount thereof, and his taxable costs.

Individual retirement accounts or simplified employee pensions, as defined by section 408 of the United States Internal Revenue Code of 1986, as amended, shall be subject to seizure, setoff, or attachment for the benefit of creditors only by means of legal process, and not by unilateral action by the bank with which such accounts are deposited, or by other creditors, notwithstanding any agreements to the contrary.

If, in an action before a municipal court, the defendant pleads a setoff or files a setoff with the general issue which exceeds the jurisdiction of the court, and accompanies it with an affidavit that the claims mentioned in the setoff are, in his belief, justly due and owing to him, no further proceedings shall be had before the municipal court than to record the plea and setoff, and, if the plaintiff so elects, to enter a nonsuit.

If the plaintiff does not elect to become nonsuited he may enter the action at the next term of the superior court, filing with the clerk attested copies of all papers in the case, and may prosecute the action in that court as if originally begun therein.