Gayle

5 Ky. Op. 694, 1871 Ky. LEXIS 573

• Court: Court of Appeals of Kentucky
• Decided: June 8, 1871
• Status: Published

Opinion

Opinion by

Judge Lindsay:

Inasmuch as the original answer failed to state that the discovery, that the representations of Henry & Lyons & Co. were false and fraudulent was not made until after the execution of the note to Elam, said answer was not sufficient even when tested by the principles governing this court in the case of Pitt v. Shannon (Hardin’s Rept. 58), and consequently the court did not err in sustaining the demurrer to the same.

It seems from the record that the appellants afterwards offered to file the amended answers but that the court refused to permit either of them to be filed. The clerk copies into the record two papers, which he terms “amended answers.”

How said papers came into his possession does not appear, as the court did not permit the amendments to be filed, nor even lodged in the papers of the case, and as they were not made a part of the record by a bill of exceptions they in law remained in the possession of the appellants as their private property, and they could not make them a part of the record in this case by merely depositing them with the clerk without leave of court. As said papers cannot be considered a part of the record, of course we cannot determine that the court erred in refusing to permit the amendments offered to be filed.

The judgment of the circuit court must, therefore, be affirmed.