Riddle v. Backus
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Opinion of the Court
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Day, J.
— The plaintiff filed his petition and amended petition, as executor of the estate of Hannah Backus, claiming of defendant the amount of a promissory note. Neither of these petitions was verified.
*431 The defendant answered denying plaintiff’s capacity to sue, and claiming $2,500 for work done.
The plaintiff demurred upon the ground that the claim is barred; that it was not presented to, or allowed by, the executor ; that it is not sworn to.
The demurrer was sustained as to the last ground, and overruled as to the others.
Defendant thereupon filed an amendment to his answer, which was properly verified. To this answer a demurrer was sustained. Defendant thereupon filed a second amendment to his answer, which was not verified. Plaintiff demurred to this answer, assigning the same grounds as those alleged against the preceding amendment, but not presenting the question as to the want of verification. This demurrer was overruled. Some two weeks afterward plaintiff filed another demurrer to defendant’s second amended answer, upon the ground, among others, that it was not sworn to. This demurrer was never ruled upon by the court, but defendant filed a paper containing a verification of the second amended answer.
Plaintiff thereupon moved the court for judgment upon the pleadings, upon the ground that defendant’s answer had been amended oftener than allowed by section 2863 of the Revision.
.The court sustained this motion, and rendered judgment for the amount of the note. This action was clearly erroneous. Section 2863 of the Revision authorizes a judgment as for want of a pleading when a third answer shall be adjudged insufficient. No such adjudication was ever had in this ease. The first demurrer to the second amendment, which was the third answer, was overruled, and the answer was thereby adjudged sufficient. The second demurrer was not passed upon, but a verification was filed voluntarily by the defendant. Besides, plaintiff had no right to file this second demurrer, and the court could not properly have sustained it.
“ A motion after a motion, or a demurrer after a demurrer, to the same pleading, shall not be allowed.” Rev., § 2866.
Reversed.
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