Evans v. Stone
| Decision Date | 11 February 1882 |
| Citation | 3 Ky.L.Rptr. 751,80 Ky. 78 |
| Parties | Evans v. Stone, & c. |
| Court | Kentucky Court of Appeals |
1. An answer to a suit upon a promissory note, averring that it was obtained by fraud, misrepresentation, and covin, without specifically setting forth the facts constituting the fraud presents an issuable fact, and a reply must be made to it.
2. And so if the answer was that the note was executed without any consideration.
3. The motion of appellant that the court render judgment for him notwithstanding the verdict against him, should have been granted, because no reply had been made to either paragraph of his answer.
4. Neither sections 114 nor 134 of the Code have any application to the case.
5. The court erred in setting aside the verdict for the purpose of enabling appellee to file a reply. It was too late.
APPEAL FROM FAYETTE COURT OF COMMON PLEAS.
BRECKINRIDGE & SHELBY AND MORTON & PARKER FOR APPELLANT.
After the verdict was rendered, and appellant moved the court for judgment in his favor, notwithstanding the verdict, nothing was left but to examine the pleadings, and, in the absence of a reply to the answer, to grant the motion. There is no authority in the Code to set aside a verdict, simply with the view of permitting a party to do that which he ought to have done before verdict. (Civil Code, secs. 340, 386; 14 Ind 118; 14 Ohio 206.)
D. G FALCONER FOR APPELLEES.
Under the present Code an issue can be made and is made without a reply, unless the answer contains affirmative allegations. Here there are none. (Boone v. Shackleford, 4 Bibb, 67; Ralston v. Bullitt, 3 Ib., 264; Coyle v. Fowler, 3 J. J. Mar., 473.)
This was an action on a note by the appellees against the appellant and another.
The appellant answered and pleaded--
First. That " the note sued on was executed without consideration."
Second. That " the execution of said note was obtained by fraud, misrepresentation, and covin."
And in the third paragraph he stated the facts on which he relied to show the fraud and want of consideration.
On motion of appellees, the third paragraph was stricken out, and without a reply having been filed to the other paragraphs, a trial was had which resulted in a verdict for them.
The appellant then moved for judgment, notwithstanding the verdict, to which appellees objected, and on the fifth day thereafter the court, at their instance, set aside the verdict, permitted them to file a reply, overruled appellant's motion, and continued the case.
A subsequent trial terminated in a second verdict for the appellees.
The bills of exception present the history of each trial.
The solution of the question involved depends upon the sufficiency and nature of appellant's answer, and the object of section 386, Civil Code.
A plea which avers that a note, bond, or other like instrument, was given without any consideration, although it is in the negative, does not traverse the whole of the petition, and must be treated as pleading new matter, not alleged in the petition, and therefore presents an issuable defense, to which a reply is necessary to produce an issue. (Boone v. Shackleford, 4 Bibb, 67; Ralston, & c., v. Bullitt, 3 Bibb, 264; Coyle's ex'x v. Fowler, 3 J. J. Mar., 473.)
An answer or plea to an action on such instruments alleging generally that the writing sued on was obtained, or its execution procured by fraud, misrepresentation, and covin, without specifically averring the facts constituting the fraud, is sufficient, and presents a substantive and issuable fact, which is not a mere conclusion of law, and must be taken as true, unless denied. (Ross et al. v. Bragdon, 2 Dana, 161; Sharp v. White, 1 J. J. Mar., 107; Whitehead, & c., v. Root, & c., 2 Met., 588.)
The allegations of appellant's answer, although material and affirmative, stood undenied, no reply having been filed when the verdict was rendered, and according to the rules of pleading the appellant was entitled to the judgment, because, if his pleas were true, they formed a complete bar to the action, and by failing to traverse them, the appellees admitted their truth, and thereby left no issue of fact to be determined by the jury.
And section 386, Civil Code, provides that " judgment shall be given for the party whom the pleadings entitle thereto, though there may have been a verdict against him."
At the time the appellant made his motion for judgment notwithstanding the verdict, the pleadings entitled him thereto, and this provision of the...
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