City of Dayton v. Hirth , 121 Ky. 42 ( 1905 )

Opinion by

Judge Nunn

Affirming.

Or August 23, 1900, the appellee was severely injured by falling into a hole, about six feet deep, in the sidewalk, on one of the streets of appellant city. She instituted, her action for damages on April 17, 1901; the summons was issued on her petition on that day, and served two days thereafter. No steps were taken in the case until the 23d day of January, 1904, and on that day the court made an order filing the case away. Within less than a month, and on the 20th of February, 1904, it made an order redoeketing the case, to which order the appellant objected and excepted, and at that term of the court the appellee filed an amended petition, and the appellant filed its answer traversing all the allegations of the petition and amended petition, pleaded contributory negligence on the part of appellee, and pleaded the one-year statute of limitations in bar of her action. The issues were completed, and the case was tried by the jury, who brought in a verdict for $3,550. The appellant filed the following grounds for a new trial: First, the damages were excessive, and appeared to have been given under the influence of passion and prejudice; second, the verdict was not sustained by sufficient evidence, and was contrary to law; third, that it had discovered evidence material to its defense, and which it could not have with reasonable diligence discovered and produced at the trial.

We will consider the first two grounds together. We deem it unnecessary to detail the evidence produced upon the trial, hut it showed that this hole ‘in the sidewalk did exist to the depth stated, and that appellee, in passing along this walk after dark, and not being aware of it, stepped into it. The proof showed that appellant’s officials knew, or by the exercise of ordinary care could have known, of the existence of it for a sufficient length of time prior to her injury to have repaired it. Considering the character, nature, extent and permanency of the injuries received, as proven by herself and the physicians who treated and examined her, the amount of recovery is not excessive.

The appellant filed the affidavits of two newly discovered witnesses with reference to what they knew about the case.. Their evidence, if admitted, was of not much importance, and merely cumulative. It failed to file the affidavit of the only other new witness, or give any reasonable excuse for its failure to do so. (Bright v. Wilson’s Adm’r, 7 B. Mon., 122.)

Appellant contends that its plea of the statute of limitations was a complete bar to appellee’s cause of action, and should have been sustained, for the reason that appellee did not, in the sense of the statutes, institute her action until she verified her petition in March, 1904, at the time she filed her amended petition. It refers to the case of Park v. McReynolds, 111 Ky., 651, 64 S. W., 517, 23 Ky. Law Rep., 896, as sustaining this position. In that case the court was considering the question as ' to whether or not the pleadings had been made up a sufficient length of time to authorize the court to try. the case at that time, and, in discussing the question, the court used language which seems to sristain appellant’s position. But in the same connection the court, in speaking of the filing of a reply, used this language: “Or, if it be considered filed at all, it can not be taken as a complete pleading until it is verified, or the verification waived by some act of the adverse party.” It is provided by sec. 2524, Ky. Stats. 1903, that an action shall be deemed to have been commenced at the date of the first summons or process issued in good faith from the court or tribunal having jurisdiction of the cause of action. By sec. 39 of the Civil Code of Practice it is provided an action is commenced by filing in the office of the clerk of the proper court a petition stating the plaintiff’s cause of action, and by causing a summons to be issued thereon. This section does not refer to the verification of the petition. It would seem that the verification is not a prerequisite to constitute it a petition; it would merely be defective, but this could be made perfect at any time by the plaintiff or by motion and rule at the instance of the opposite party.

Objection to a pleading for want of verification should be made by rule requiring party to verify, and, upon his failure to do so, the pleading should be stricken from the record, but not until a rule to verify has been awarded and time given. (Wheeler v. Wales, 3 Bush, 225; Baxter v. Knox, 31 S. W., 284, 17 Ky. Law Rep., 489; Payne v. Trigg, 41 S. W., 4, 19 Ky. Law Rep., 801.) The Park-McReynolds case, 111 Ky., 651, 64 S. W., 517, 23 Ky. Law Rep., 896, is overruled, so far as it conflicts with this opinion.

Appellee’s action was begun within the twelve months after she received her injury, and, in our opinion, she had an action pending from the date of the filing of her petition and the issuing of the summons thereon, although she did not verify it until after the twelve months had expired from the date of receiving her injury. It was within the discretion of tlie court to redocket appellee’s action, and this court will not disturb the action of the lower court in matters of discretion, unless it be made clearly to appear that it abused that discretion, and, there being nothing in the record showing that fact, it is to be presumed that the lower court acted properly in the matter.

Perceiving no error in the record prejudicial to the substantial rights of appellant, the judgment of the lower court is affirmed.