Lyle v. Poynter , 62 Ky. 357 ( 1864 )

JUDGE ROBERTSON

delivered the opinion ob the court.

Although the answer and cross-petition setting up a counter claim, was signed ánd verified only by S. B. Eubank, the acceptor, who was no party to the action, yet judging, as this court must, by the record alone, we cannot consider the extraneous suggestion made in the brief of the appellee’s counsel, that it was permitted to be filed as an answer only; for without any such qualification or restriction, the record states that it was filed as “the answer and petition of the defendants.” We are bound by this, and cannot look beyond it. And, so considering the attitude of the case, the judicial consequence is, that the counter claim, apparently well pleaded, was admitted on the trial on the day of the filing without any traverse of its allegations. And, consequently, no testimony admissible under the pleadings could have authorized the verdict. We are not permitted judicially to presume, even in the absence of a bill of exceptions, that the counter claim was either waived or made the subject of proof on the trial. On the contrary, the legal presumption is, that the trial was premature, and without litigating or regarding the counter claim, or considering it as admitted by the pleadings. On the record, therefore, the verdict is apparently unauthorized.

Wherefore, the judgment is reversed, and the cause remanded for further proceedings.