Reed ex rel. Reed v. Fox

By the Court, Upson J. Under Circuit Court Rule 85, (providing for amendments of course), as amended April 20th, 1860, it is [143] provided that “ if the pleading be such as does not require to be answered, it can be amended under this rule only within ten days after filing the same.” The so-called amended plea” and affidavit having been filed more than ten days after the filing of the plea in this case, which did not require to be answered, comes within the prohibition in the Rule, and was filed without authority. The plaintiff’s attorney having returned it with notice of refusal to receive it, (20 Wend., 276, 680; 25 Wend., 699,) and also with notice of motion that the same be stricken from the files, is entitled to have his motion granted 1 Doug. Mich. R. 434. Defendants’ attorneys thereupon, after order made striking amended plea and affidavit from the files, moved the Court, on affidavits denying execution of the note by Paddock, for leave to file affidavit on his behalf, under Rule 79, but without showing any reason why it was not filed with the plea. By the Court. The cause being now on the issue calendar for trial, and the party having being aware of his irregularity, the motion comes too late; but even if admissible, no excuse is shown for the omission. Motion denied.