A. Mitchell & Bro. v. Redman

Decided September 9, 1879

Court of Appeals of Kentucky · decided 1879-09-09

<p>Reply Must Be Sworn to When Filed Out of Term Time.</p> <p>It is error for the court to permit a reply to be filed out of term time when it is not sworn to, and when the defendant has done nothing to waive his right to have such reply verified.</p>

Decided 1879-09-09

¶1Opinion by

Judge Hargis:

¶2The court might in its discretion allow the reply to be filed aftei the time prescribed by law. Section 161, Myers’ Code.

¶3But Sec. 142 required “the petition, answer, and reply” to be verified by the affidavit of the party. To have the reply verified was a right in the defendant over which the court had no discretion. The defendants did nothing to waive that right, but upon the contrary insisted upon it, and the court erred in permitting the reply to be filed out of term time without verification.

¶4Wherefore judgment is reversed and the cause is remanded with directions to overrule the motion to file the reply, and for further proper proceedings.