Myers v. Douglass

35 S.W. 917, 99 Ky. 267, 1896 Ky. LEXIS 84

• Court: Court of Appeals of Kentucky
• Decided: May 15, 1896
• Status: Published

Opinion

JUDGE PAYNTER

delivered the opinion of the court.

This action was on a promissory note. Tbe plea was non est factum. After a trial and verdict for tbe defendant the plaintiff moved the court for a judgment for him, notwithstanding- the verdict, because the answer was not verified.

Unitl after the verdict no question seems to have been made that there was no verification of the answer. There is no question made nor could there be that the answer did not contain facts sufficient to constitute a good plea of non est factum.

Section 473, Kentucky Statutes, provides that “the execution of a writing on which a suit or defense is founded or its assignment shall only be denied by answer or other pleading verified by oath.”

It is obvious that the answer should have been verified by oath. The court, on having- its attention called to the want of verification of the answer, would have refused to allow it to be filed; or, having permitted it to be filed without verification, then certainly on defendant’s refusal to verify it would have authorized the court to have stricken it from the record. There was no objection to the fiilng of the answer, nor was there any motion to require the defendant to verify it..

Section 138, Civil Code of Practice, provides that “no objection shall be taken after the commencement of the trial to any pleading for the want of or a defect in the verification.”

While the statute requires the verification of the answer, yet the Code provides when the objection shall be made. If not then made it is waived.

The judgment is affirmed.