66 Ky. 225 | Ky. Ct. App. | 1867
delivered the opinion op the court:
It appears from the bill of exceptions, that, after the jury was sworn, the plaintiff moved the court “ to strike from the record the amended answer of the defendant, which had been filed in open court before the swearing of the jury,” because the same had not been verified ; and although the defendant then offered to swear ' to the pleading, the court refused to allow him to do so, and sustained the motion of the plaintiff; and this ruling is complained of as an error for which the judgment against the appellant should be reversed.
The amended answer thus excluded pleaded facts constituting a bar to the action, according to the lith section
It seems to us, that if the objection of the plaintiff, that the amendment had not been verified, should not have been treated as waived after the swearing of the jury, the plaintiff was certainly not entitled to more, on that account, than a rule requiring the defendant to swear to the amendment; and only on his failure to do so to have it stricken out; and as the defendant offered to verify the amended answer, the court erred in refusing to allow him to do so, and in excluding the pleading.
Wherefore, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.