Spurr v. Batchelor , 102 Ky. 606 ( 1898 )

JUDGE WHITE

DELIVERED THE OPINION OF THE COURT.

This action was brought by .appellee in the Fayette Circuit Court against appellant, R. J. Spurr and one E. D. Spurr, upon a written contract. Tbe petition was-filed February 15, 1895, and on- tbe 12th day of' April, 1895, tie record shows that a joint answer, set-off and counter claim, which, however, was sworn to by E. D. Spurr only, was filed. The issues thus tendered by the joint answer were joined by reply and on November 23, 1895, a jury was empaneled and .sworn and adjourned' over to 2Gth. On November 2Gth by consent the jury was withdrawn, and a new jury empaneled and «worn, and then the appellant, R. J. Spurr, offered to file his separate answer, in which he plead non est factum to the writing sued on. Appellant filed affidavits of himself and Bronston & Allen, attorneys. Appellee filed counter affidavit of R. A. Thornton, and the court being advised declined to permit said separate answer to be filed.

The trial proceeded and a verdict was had for appellee for $7,748,91 for which judgment was rendered against both defendants, and this appellant, R. J. Spurr, prosecutes this appeal.

The only error suggested by counsel for .appellant is the action of the court in refusing to permit the separate answer, pleading non est factum, to be filed. The question of filing pleadings after the trial has begun addresses itself to the discretion of the trial court. As the answer tendered and rejected by the court was offered ten months after the petition was filed and more than six months after - the joint answer was filed -in a court of continuous session, we do not feel inclined to say that the court abused its discretion in¡ refusing to permit the separate answer to be filed.

This being the only error urged we are of opinion that the judgment should be affirmed.