McClellan v. Lyon

6 Ky. Op. 93, 1872 Ky. LEXIS 435

• Court: Court of Appeals of Kentucky
• Decided: December 11, 1872
• Status: Published

Opinion

Opinion by

Judge Lindsay:

The answer, which appellants insist constitutes a good counter claim, does not set up a specific amount due from appellee on account of alleged losses. It does not 'ask for a settlement of the partnership accounts, so that these losses might be ascertained, and a proper judgment finally settling the rights of the parties rendered. It does not appear that it was intended that it should be regarded as anything more than a plea in bar to the suit on the note. The only specific relief asked is that appellee’s petition be dismissed. But if it be conceded that the facts set up constitute a counterclaim, the failure of appellee to reply was but a formal error in this case. Appellants saw proper to attach to their answer a list' of interrogatories, which were answered under oath by appellee, and these answers deny the existence of each and every material alie--gation of appellants’ answer. A formal reply, which appellants might, before the trial or at any time before the cause was submitted to the jury, have demanded, could have done nothing more. We are of opinion that these answers to the interrogatories were treated by appellants as a reply, and are not willing to disturb the judgment for a merely formal error, by which it is impossible they would have been prejudiced.

E. Field, for appellant. Gibson & Gibson, for appellee.

The motion to have judgment on their counterclaim, for the reasons already given, was properly overruled.

Judgment affirmed.