Benjamin v. Vieth

Granger, J. — As to the claim in the answer for a reformation of the lease, appellee concedes in argument the insufficiency of the testimony to sustain the claim, and it is to be disregarded. This leaves.the issue upon the general denial and the amendment to the answer filed at the close of the testimony. This amendment must be understood as a distinct division of the answer, for it makes no reference to the other divisions, nor is it pertinent to the subject-matter of the others. It is pleaded as a defense, and its sufficiency is not questioned, and hence any objections to it are waived. We need not refer to authorities to support this rule, for appellant in this case invokes the aid of the same rule for the protection of her petition, saying that, as it is not attacked by demurrer, it admits “that the plaintiff [151] has a cause of action.” The same rule obtains as to the answer. If unassailed, it is an admission that it states a defense. It is only necessary, then, to inquire if the defense stated in the amendment filed at the close of the testimony has support in the record, and, if so, it is conclusive of the case. In argument it is said by appellee that no such demand was made, which appellant does not question, but contends that the demand was not necessary, and that suit could be maintained without demand. If we concede the correctness of the proposition as an abstract one, it cannot affect the result in this case, for the objection or point should have been made against the pleading, as the defect was clearly apparent on its face, and, if not so taken, it is waived. These rules are familiar. The defense seems to have support, and the judgment must stand. It may be added that the opinions of a majority of this court are not in harmony with appellant’s .view on the main proposition of the case as argued in her behalf. Aim EMEU.