delivered the opinion of the court.

Numerous errors are assigned, but they are chiefly predicated upon the action of the court below in striking the counterclaim from the answer and the rejection of testimony offered in support of the facts alleged therein.

It appears from the uncontradieted evidence introduced by plaintiff that the plaintiff and his assignor performed the service sued for and that they had not been paid. The denial of appellee’s right to maintain the action on account of the prior assignment of the claims to Schoesser, and the institution of the suit thereon by him is without merit, since it clearly appears that that action was dismissed and the claims reassigned by him to plaintiff and his assignor before the commencement of this action.

The third defense was properly stricken from the answer, as the facts alleged therein constituted no counterclaim to plaintiff’s cause of action. The damages, if any, caused ■ to appellant by the suing out of the attachment in the former action must be recovered, if at all, in an action against *107Schoesser and his surety on the attachment bond, and cannot be made available as a counterclaim against the plaintiff in this action for two apparent reasons. First, the plaintiff was not a party to that instrument; and, second, if he could be held liable, as appellant’s counsel seem to claim, for a portion of such damages by reason of being a party in interest in the action, such liability would be a joint one and not available as a counterclaim in an action brought by him to recover an individual indebtedness.

The defendant’s liability to plaintiff for the services performed by him and his assignor was in no way affected or lessened by any of the facts alleged in the counterclaim, and upon the evidence the court correctly adjudged him liable for the amount sued for. A diligent and careful examination of the record fails to disclose any evidence upon which the judgment of the court below, in sustaining the attachment, can be upheld. There is no evidence of the terms of the contract under which the services were performed, or of the time when -they were to be paid for. The appellant having traversed the facts, alleged in the affidavit as the ground of attachment, the burden was upon the plaintiff to show their existence. Failing to do this, the court erred in refusing to dissolve the attachment. The judgment of the court below, upon the merits, is therefore affirmed; and its judgment upon the attachment issue reversed and attachment dismissed at costs of appellee; costs in this court to be paid by appellant.

Judgment modified.