Swilley v. Low

Cole, J. The causes of action in these consolidated cases, are two judgments alleged to have been paid by plaintiff for the benefit of defendant. The answer is a general denial. After numerous continuances, an amended answer was filed, which alleged that plaintiff had received two sums of money from third parties on account of defendant, and the indebtedness of defendant to plaintiff for the amount now claimed, was thereby extinguished ; the answer plead the same in payment and compensation. Plaintiff then offeree to file a supplemental petition, which was opposed upon the grounds, that it was too late, and that the substance of his demand and the issue in the cause would be altered thereby. The objections were properly overruled. The amended petition purported to be a reply to the amended answer, and merely detailed a series of debts of defendant to plaintiff, which the latter opposed to the claims of the former in the amended answer. It made no material change in the issue, and the testimony in support of its averments would have been admissable under the issue presented by the amended answer. Besides, amendments should be recoived whenever required to accomplish the ends of justice. Art. 421 O. P. declares, that when one of the parties has amended either his petition or his answer, the other party has the right of answering the amendment. There was no necessity for the filing of the amended petition, as plaintiff would have had the right to have offered the claims therein contained against those in the amended answer, without any amended petition whatever. It is well settled that all the allegations in the answer are open to every objection of law and fact, inasmuch as replications are not required by our law. Defendant afterwards moved for a continuance on the grounds, that he was entitled to service of the supplemental petition, and was surprised by its averments. As it was unnecessary to have filed the amended petition, the service thereof was not requisite. If defendant was unprepared for its allegations, liis application should have been supported by his affidavit. Judgment affirmed, with costs.