¶1The defendant denied that the plaintiff had paid as his surety the amount claimed, but admitted that he had paid $164.80, and that the plaintiff was entitled to judgment for that sum, which he offered to let the plaintiff talce. The plaintiff moved the court for judgment in his favor for the amount above stated, and thereupon the defendant ashed and obtained leave to amend his'answer, and the court denied *485tbe motion for judgment until tbe amendment to tbe answer was filed. The statute provides “ that when, by the statements of the pleadings, one party is entitled by law to judgment in his favor, judgment will be so rendered, though a verdict has been found against such party, unless the other party proceed as provided in section 2842 of this chapter.” Code, § 2859. It is quite evident that this section contemjfiates that there has been a trial, and that one party is entitled to judgment, although the verdict of the jury is against him. In the case at bar the issues had not been made up. The case was not even ready for trial. It is true, the defendant had admitted that the plaintiff was entitled to judgment in a certain amount, but, before any judgment was rendered, he asked leave to amend his pleading, and, clearly, the court, in its discretion, could grant such leave. Code, § 2689. Having granted leave to amend the answer, the court properly refused to enter a judgment for the plaintiff until such amendment was filed and the issues made up. This appeal is premature.
¶2Affirmed.