Katz-Rothstein Furniture Co. v. Kangesser ( 1929 )

VICKERY, PJ.

We cannot quite follow this reasoning. If the party against whom this judgment was rendered had asked leave to file a reply during the trial or even after the judgment was entered! we think in the administration of justice, it would have been the duty of the court to permit the filing of such a reply. But since the party went on and produced the evidence, it was a waiver of the reply and the rights of the parties were not affected in the least by the failure of a reply.

The argument that is made would be sound if there had_ been no hearing and no evidence had been introduced in this case; that is, if it were a judgment on the pleadings alone. It would be manifestly unjust if, when a cross claim had set up $199 and the evidence showed that the cross petitioner was only entitled to $99, the court should ignore the evidence and render a judgment upon the pleadings simply upon the technical ground that there had been no reply filed. We do not understand that in the administration of justice, rules should be used so drastically as that. It might open the door wide to .abuses. The pleader of the cross demand knew that it should have been replied to, and if a reply containing a general denial had been filed he must admit that his contention in this court would be of no avail, but because there was no reply which he did not demand should be filed, he goes on and submits his evidence; and the evidence shows he is entitled to only $99; then he claims that he can avoid responsibility and get the amount that he set up in his pleading, irrespective of what the evidence shows. We do not think that this is in accordance with a just and correct administration of the law.- We do not see on this record that there is any such error that in the, absence of a bill of exceptions would warrant us in disturbing the verdict and judgment thereon.

The judgment of the court below will, therefore, be affirmed.

Sullivan and Levine, JJ, concur.