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legal discretion in the matter, because the varying circumstances of each case necessi
enter into the question whenever it arises." 83 Ky., 416.

For illustrations, see Downing v. Bacon, 7 Bush, 680, in which the defendant
allowed to file an amended answer correcting an alleged mistake in a former answer, 1
reference to a fact presumptively within his knowledge ; Yocum v. Foreman, 14 Bush,
in which leave to file an amended answer pleading limitation was refused ; and Hawnh
Bassett, 12 Bush, 361, in which, upon reversing a judgment in favor of the plaii
because his petition failed to aver a publication of the alleged slander, he was allowe
amend his petition in order to make that averment; Mount v. Tappey, 7 Bush, 61;
which, judgment having been rendered against the defendant upon an insufficient ans
he tendered an amended answer and moved to set aside the judgment, and the court s
" Waiving inquiry as to the sufficiency of the defence presented by the amendment, a
reason was disclosed for failure to allege the entire matter of the defence in the ori§
answer, we can not adjudge that the refusal of the court to vacate the judgment
permit renewed litigation on amended pleadings was not a proper exercise of judicial
cretion;" and Evans v. Stone, 80 Ky., 78, in which there was a trial and verdict for
plaintiff, though he had failed to reply to an affirmative defence ; wherefore the defen
moved for judgment notwithstanding the verdict; but the court set aside the verdict
allowed the plaintiff to reply, and upon a second trial the jury again found for the p
tiff; and from a judgment on that verdict the defendant appealed, and obtained a rev<
with directions to render judgment for him.

4. Amendments in attachment-cases : see note (a) 5 to § 196, and J 268, and notes.

(c) Amending pleadings to conform to proof 1

1. In an action on an alleged express contract, if the evidence show the plaintiff
tied to recover on an implied contract, he should be allowed to amend his petition. Ft
fort Bridge Company v. City of Frankfort, 18 B. M., 41.

2. In an action against a city for work done at its instance, the petition alleged the
formance of the work ; the proof was that the work was done under a special con
that the plaintiff was to look to the lot-owners for payment ; and the court instructed
jury to find for the defendant; after which, but before the verdict was rendered, the p
tiff offered an amended petition, alleging facts sufficient to render the city liable u
the special contract : held, that the amended petition should have been permitted t
filed. Kearney v. City of Cov., I Met., 339.

3. The defendant pleaded that the note sued on contained $160 of usury. The p
tiff, in reply, admitted that it contained $36.92 of usury. Upon the statement of a
ness tending to show there was no usury, the plaintiff was allowed to amend his reply
deny that the note contained usury: held, to be error. Hubble v. Murphy, 1 Duv. y

4. In an action against a sheriff for damages caused by the wrongful seizure of p
tiff's property by an alleged deputy of the defendant, he answered, denying that the all
deputy had ever been legally appointed and qualified as such ; but there was evid
tending to prove that the alleged deputy had, in that instance, acted by authority 01
defendant ; and it was held that the plaintiff should be allowed to file an amended pet
relying on that fact. Mann v. Martin* s adm'r, 82 Ky., 242.

5. See National Mutual Benevolent Association v. Jones, 84 Ky., no, in which an <
of submission was set aside, and the defendant was allowed to file an amended an
conforming to facts proved, time being afforded to the plaintiff to take additional evid<

(d) Indefinite or uncertain allegations.

Objection to a petition, on this ground, must be made, not by demurrer, but by mo
and it is waived by answering {Posey v. Green, 78 Ky., 162; Pugh v. White, Id., 210) ;
vided the answer be of such a nature that, when taken in connection with the petiti<
shows the relief sought and the right of the plaintiff thereto. Nye, <5rV. f v. Catchin K
Ky., 463. See note 2, post, page 178.

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not object, for the first time, in the Court of Appeals because the
that the court below disposed of a demurrer, or of a reference to arbi-
ial, it must be presumed that the demurrer was waived or overruled,
;rence set aside or abandoned by the parties (2 Met., 119) ; or for want
entication of an exhibit (12 Bush, 600) ; or because plaintiff failed to
lich his action was founded (12 Bush, 577) ; or because the court has
the person of the defendant, or because the plaintiff has not legal
ecause there is another action pending between the parties, or because
parties, plaintiff or defendant (??92 and 118, and notes thereto) ; pro-
>f parties, that the court can determine the controversy between the
lout prejudice to others (J 28 and notes) ; and exceptions to depositions,
rhich do not appear to have been acted on by the court below, are
irt of Appeals as waived. 3 Met., 397; 3 Bush, 318.
the court in refusing to strike irrelevant or redundant matter from a
lil for a reversal. 4 Met., 330.

[uires arbitrators to make an oath " to decide the controversy to them
I to law and evidence and the equity of the case, to the best of their
avor or affection." An oath that they " would faithfully discharge the
hem as arbitrators " was held to be sufficient. 1 Met., 625.
nent-suit, A filed a petition claiming the attached property, and the
> be made a defendant, which was not done; but the case proceeded
ic; and A obtained a verdict and judgment, which the court refused

g appeared to a motion, having agreed on a day to try it, and having
5, were held to have waived objections to all previous irregularities.

omission of an action in equity is not an available error, if judgment
that appellant's petition showed himself entitled to. 13 Bush, 688.
insfer of a legal issue to the equity docket is not ground for reversal
injured thereby. 14 Bush, 193.

igainst two partners, upon a demand for which both were liable, the
nd, apparently, by oversight) rendered judgment against one only:
1, that he was not entitled to a reversal, because it did not appear that
5 were affected. 14 Bush, 776.
used to reverse an erroneous judgment for costs amounting to $6.50.

d an affidavit before a justice of the peace and obtained an attach-
om an order dismissing the action and discharging the attachment,
id the defendant moved to dismiss the action on the ground that no
ed in the justice's court: held, that there was no error in overruling
allowing the plaintiff to set forth his demand in a formal pleading.
Ky., 146. [The justice has jurisdiction to the extent of $100, but
quired the pleading to be in writing.]

for a breach of the plaintiff's close, and an assault and battery upon
was no evidence of a breach of the close, the jury found the defendant
in the petition," and assessed damages, and judgment was rendered
held that, though the verdict may have been informal, it must be
y did not assess any part of the damages on account of the alleged
j, and that the judgment must be sustained. Noel v. Hudson, 13*


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(12) When an amended petition is in fact filed, and, though not noted of record, is
treated by the parties as having been filed, and is certified by the clerk as part of the
record, it will be so regarded by the Court of Appeals. 3 Met,, 311.

(13) See note to 8756.

2. Curing of defective pleadings or affidavits by pleadings or affidavits of the adverse party.
It has been frequently held that the failure of a party to state a fact may be cured,
either —

(1) By his adversary's admission of the existence of the fact, whether expressly (8 Dana,
184; 4 B. M., 198-99), or impliedly {Wall v. Hill, 7 Dana, 172; Howland Coal and Iron
Works v. Brown, 13 Bush, 681 ; Grigsby v. Barr, 14 Bush, 330) ; or,

(2) By the adversary's denial of the existence of the fact. Thus —

a. In Barlow v. Wiley, 3 Mar., 457, the defendant being sued upon a covenant, pleaded
that it was obtained by fraud, covin, and misrepresentation, and the plaintiff filed a reply
traversing that allegation ; and the court holding (contrary to recent rulings, see ante, page
127) that the answer was insufficient because it did not state the facts constituting the
fraud, yet held that the reply waived the objection and authorized the defendant to prove
any fact which could have been pleaded.

b. In an action for dower, plaintiff's failure to allege that her husband had legal title
was cured by defendant's denial of that fact. 4 B. M., 367.

c. It was said that an affidavit that the plaintiff believes that the defendant has con-
cealed himself, &c, is perhaps sufficient to authorize an attachment; but if not, yet if the
defendant, instead of moving to discharge the attachment, file a response, denying that
he has concealed himself, &c, the Court of Appeals will not reverse a judgment against
him because the affidavit was defective. 2 Met., 137.

d. In an action for trespass, the petition alleged that the defendant broke into the plain-
tiff's house, and demanded her watch, without alleging that he took the watch : the defect
was cured by the answer, which denied that the defendant took the watch. Jewell v. Mills,
3 Bush, 66.

e. So, in an action for an injury caused by a defective bridge, the plaintiff's failure to
allege that it was a public bridge, &c, was cured by the defendant's denial that it was a
public bridge, &c. 9 Bush, 529.

/. A failure to allege a mistake in measuring corn may be cured by defendant's denial
that there was a mistake. 13 Bush, 512.

g. In an action against a sheriff for failing to levy an execution, failure to allege that
defendant knew, or might have known by reasonable diligence, that the defendant in the
execution had property (even if material), was cured by defendant's denial of those facts.
8 B. M., no.

h. In an action on an injunction bond, plaintiff's failure to allege a final determination
that the injunction was properly granted, was cured by defendant's denial that there had
been such determination. 78 Ky., 213.

*. Plaintiff's failure to allege a demand may be cured by defendant's denial that there
was a demand. 78 Ky., 439.

J. In an action on a contract required by the statute of frauds to be in writing, plain-
tiff's failure to allege that it was in writing was cured by defendant's denial that there was
such a contract. 86 Ky., 145.

k. In several cases, though in none of those above referred to, the plaintiff's right to
avail himself of the defendant's answer seems to have been founded on the plaintiff's
apparent or presumed ignorance as to his rights or the circumstances of his case: see
Deafly v. Murphy* 3 Mar., 474; Neilson, Nichols & Co. v. Churchill, 5 Dana, 333, 338;
Wall and Burnsides x.Hill, 7 Dana, 172; Gorton's heirs v. Bates, 4 B. M., 366; and in
Deatly v. Murphy the court apparently went further, and held that "where the com-
plainant is ignorant of his rights, and if the answer or proof [the italics are mine] aids

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had the legal title; but, the defendant having denied that fact, it was held that, "upon
the pleadings and proof, the complainant has a right to be endowed : " see, also Louisville
<5r* Portland Canal Co. v. Murphy, 9 Bush, 522, and Smith v. Theobald, 86 Ay., 141.

(3) The opinion is partly based on the alleged ground that, if there had been no
answer there could have been no judgment by default : why not ? I concede that alle-
gations of legal conclusions do not authorize a judgment by default. But the grievance
complained of by Catching was the backing of water upon his wheel, and it was sufficient
for him to allege that Tye did so by raising his dam, the fact that Tye had raised it twelve
inches, or to any particular height, being matter of evidence; just as it is sufficient for the
plaintiff, in an action upon a warranty of the soundness of a horse, to allege that the
horse was unsound, the fact that the horse had glanders, or any other particular disease,
being matter of evidence. 3 Afon., 173.

True, the petition did not enable the court to decide how much the dam should be
lowered, or what damages should be awarded. But that was immaterial. The petition
showed that the plaintiff was entitled to some damages (13 B. M., 405; 2 Duv., 419) ; and
i't; to have Tye's dam lowered to some extent; and, if there had been no answer, there should

>' V YiSLve been a judgment by default; and an inquiry under §379 of the Code would have

enabled the court to decide as to the extent of relief.

(4) But, even if it were true that Catching would not have been entitled to a judgment
by default if there had been no answer, that fact would not prove the correctness of the

{ $\ decision; because Tye answered denying plaintiff's allegations, and it must be assumed

1 ,J' that the evidence justified the decision of the chancellor. See 6 B, M., 381, and other

, y. cases cited in note (2), ante, page 178, and in note b, post, page 181.

In Drake's adm y r v. Semonin & Dixon, 82 Ky., 291, the court said: " Where there is any
defect, imperfection, or omission, in any pleading, whether in substance or form, which
would have been fatal on demurrer; yet, if the issue joined be such as necessarily required,
on the trial, proof of the facts so defectively stated or omitted, and without which it is
not to be presumed that either the judge would direct the jury to give, or the jury would
have given the verdict, such defect, imperfection, or omission is cured by the verdict.
Chitty* s Pleadings ; Bliss on Code Pleading; Leman's Pleading and Practice. It is often
difficult to apply this rule, and to make the proper distinction between cases where the
cause of action is defectively stated, and where there is a total omission to state a
cause of action, or the absence of an averment constituting the foundation of the plain-
tiff's right of recovery. In Wilson v. Hunt's adm'r, 6 B. Afonroe, it is said : 4 When the
\* |< j verdict can be fairly considered as establishing between the parties the very fact which

*: i 1 ; should have been, but is not, precisely averred in the declaration, and especially when it

j j • : clearly appears that the particular fact was understood by the parties to be the point in issue

to be decided by the jury, it would be unnecessary for the ends of justice, and would be more
\"l than useless to remand the case, that it should again be presented for the consideration of

■''; the jury.' The better rule, and in fact the one recognized by all the elementary writers,

3 .if ' including Mr. Chitty, is, that where there is a total omission to state a cause of action, or

some fact essential to the cause of action has been wholly omitted, the verdict will not
»V cure the defect."

It seems clear that the court erred in saying that where " some fact essential to the
cause of action has been wholly omitted, the verdict will not cure the defect," and in saying
that Mr. Chitty "recognized" that rule. To the contrary, the rule as to "intendment
after verdict " was established, partly, for the purpose of giving relief to a plaintiff who
has "wholly omitted" the statement of "some fact essential to the cause of action," and
it is so stated by Chitty, even in the passage cited by the court ; for he there says that any
omission, whether in substance or form, may be cured by verdict, if the issue joined be such
as to require proof of the fact so omitted ; and elsewhere, Chitty says: "The omission of
the averment of the performance of a condition precedent, or of an excuse for non-per-


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1 on demurrer, or in case of judgment by default ; but after verdict the
i some cases, be aided by the common law intendment, that everything
d to have been proved which was necessary to sustain the action, for a

a case defectively stated." Vol. I, page 319.

ted by Chilly seems to be supported by the decided weight of Kentucky
jh, as I have suggested, there has been some conflict of opinion upon this
;ads me to refer somewhat particularly to the cases pro and con.
holding that defects were cured by pleadings of the adverse party.
tted in note 2, ante, page 178.

nth v. Damrou, 1 A/on., 235, in which, though the plaintiff's bill failed to
action, he was given relief upon the answer and proof; Wilson v. Hunfs
379, in which the plaintiff, suing as distributee of H, stated facts showing
ephew, without alleging that there were no descendants, of H, but the
ver denied that he was a distributee, and a verdict for the plaintiff was
t & Son v. White, 10 Bush, 169, in which it was held that in an action for
a work, though the petition fail to show that the plaintiff is entitled to pay
the answer deny that any extra work was done, the defects in the petition
y a verdict for the plaintiff; Drake's ad/n'r v. Semonin, <5rV., 82 Ky., 291,
g an action for the price of goods, the plaintiff failed to allege a sale and
1, and the defendant, instead of demurring, denied a purchase, and the
ition was cured by a verdict for the plaintiff; E. & P. R. R. Co. v. Pot'

185, in which it was held that objections that there are blanks in a
lundant matter, and that plaintiff failed to state a cause of action in a con-
\ not avail after verdict ; Mason v. Mason, 5 Bush, 187, in which it was
rere erroneous to permit the filing of a cross-petition of an infant by his
m, because the infant was not summoned, the plaintiff has no right to
5 and judgment for the infant; Barton, <5rV., v. Barton, dfc, 80 Ky., 212,
>ugh the plaintiffs had no right to sue in equity to set aside a fraudulent
mse they had not obtained either an attachment, or a judgment and return
f found;" yet, as the defendant, without objecting to the jurisdiction,
, a judgment for the plaintiff should not be set aside after a trial upon the
s adni'r v. Walkers, 4 Bibb, 292, which was an action on a bond to refund
iintiff if land should " be lost by any interfering claim," and the plaintiff

land * 4 was lost by an interfering claim," without averring under what
suit it was lost; and the defendant, instead of demurring, pleaded cove-
; and it was held that the defect was cured by a trial and verdict for the
r v. Holland, 4 J. J. M., 18, in which it was held that "the sensible and
that a declaration will be good after verdict, if it contain allegations from
: necessary to maintain the action may be fairly inferred; but that a fact
imed which can not be reasonably implied by what is alleged, or which has
lal connection with any fact that is averred. Now an allegation of prop-
taken by the defendant] does not necessarily imply that the owner had

the possession may be inferred from the right, and has a natural and
1 with it. But if there had been no allegation of property in this case,
inference that there was possession. We are, therefore, of the opinion
cures the defective allegation of the cause of action, if it be defective : "
i, 16 B. M., 690-91, in which it was held that, though an answer do not
ituting a defence, yet, if it state legal conclusions embracing such facts,
be cured by a trial and a verdict for the defendant : nor, if the verdict
e against him, should he be precluded from a reversal for erroneous
i Riggs v. Maltby, 2 Met., 88, in which, though the petition failed to show
1, either by a statement of facts or of legal conclusions, it was held that

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the defect was ctfTed by a verdict and judgment for the plain tiff— the facts of the case
being substantially these : A's execution against B, haying been levied on tobacco, and A
having given a bond to indemnify any claimant of it, C, claiming it, sued A on the bond,
but did not state its terras, or allege the breach. A answered that the tobacco was B's
property; C obtained a verdict and a judgment; A made no motion to arrest the judg-
ment, and in his motion for a new trial did not suggest the defects of the petition : on an
appeal by A, the judgment was affirmed.

(2) For cases holding that defective pleadings were not cured by pleadings of the adverse
party, see Clay v. Johnson, 5 Litt., 176, which was an action on a bond ; defendant pleaded
that it was executed «* without any good or valuable consideration rendered by the plaintiff
and received by the defendant;" plaintiff replied that it "was not executed without any
good or valuable consideration," and the jury found for the defendant: and it was held
that the plea presented no defence, that the issue was immaterial, and that the court erred
in rendering judgment for the defendant; (and see ace. Hook's adnfr v. Hook, 3 J". J. M. %
in) : Yancey v. Smith, 2 Met,, 408, which was an action for dower against a defendant who
purchased the land in 1855 * plaintiff alleged that her husband owned the land in 1855,
and that she was his wife when he died in 1858; defendant denied her right to dower
on the ground that it was barred by jointure ; and it was held that, though her right
was not barred by jointure, judgment in her favor was erroneous, because her petition
did not allege that she was the vendor's wife at the time of the sale in 1855: Fry v.
Lexington <5r* Big Sandy Railroad, 2 Met,, 324, in which a judgment for the plaintiff
was reversed because it failed to aver performance of a condition precedent, though the
action was defended, not upon that but upon other grounds: Fible v. Caplinger, 13 B. Af. f
464, which was an action by a female for breach of marriage promise ; the defendant relied,
as matter of defence, upon the alleged facts that the plaintiff was an infant and her
father had refused consent to the marriage ; and that the contract had been rescinded ;
and a judgment for the plaintiff, upon a verdict of a jury, was reversed because the petition
was defective in failing to aver that plaintiff ever offered to perform the engagement, or
proposed to defendant to fix time and place, and execute the contract : Sousely v. Burns''
adnCr, 10 Bush, 87, which was an action on an alleged contract for the sale and delivery
of hogs; the defendant denied the making of the contract, and on that issue the jury
found for the plaintiff, with damages according to the contract ; and judgment pursuant to
the verdict was reversed because the petition failed to aver plaintiff's readiness to deliver
the. hogs at the time and place required, the court saying, " the Issue presented involved
the inquiry whether there had been a contract between the parties, and none as to the acts
or omissions of the parties under it: the petition, therefore, can derive no aid from the
answer or verdict; ' Afaddox v. AfcGinnis, 7 Mon., 370, in which H was held that, in an
action for malicious prosecution, absence of an averment in the declaration of want of
probable cause, was not cured by a verdict for the plaintiff, on the general Issue; and
Hanning v. Bassett, 12 Bush, 362, in which it was held that, in an action for slander, plain-
tiff's failure to allege that the slanderous words were published, was not cured by a verdict
in his favor — in both of which cases the court seems to have overlooked the distinction
between a judgment on demurrer or by default and a judgment on a verdict : Tye v.
Catching, 78 Ay., 463, which has been fully stated, ante, page 179; and Callahan v. First
Motional Bank of Louisville, 78 fCy., 604, which was an action by a bank against W & Son,
as payors, and C as payee and indorser of a negotiable note ; the plaintiff alleged that,
before maturity, C indorsed his name on the back of the note and returned it to W & Son,
and that plaintiff discounted it for the benefit of W & Son ; C denied that he indorsed the note
to the plaintiff or that it was discounted for him, and also denied notice and protest; and,
the law and facts having been submitted to the court, judgment was rendered against C ;
and the Court of Appeals said : " The most reasonable conclusion is, we admit, that he
[C] indorsed it for their [W & Son's] accommodation. This, however, is a mere inference

Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 29 of 142)