Arrington v. Tupper

Baldwin, J., delivered the opinion of the Court Terry, C. J., and Field, J., concurring.

In this case, the error in filing the answer, which was a copy of the original verified answer, appears to have been the result of excusable mistake, which the opposite party seems to have encouraged, or, at least, the plaintiffs did not avail themselves of [465]this mistake until after the case was opened to the jury, and too late to enable the defendant to correct the error in time for the trial; for it is shown that after the filing of the answer, the plaintiffs gave defendant's counsel notice to take depositions, and depositions were taken in pursuance of the notice, and no intimation was given, until the case was put to the jury, of any intention to take advantage of any defect in the answer.

We think, on the whole facts set forth, that the Court should have permitted the answer to be verified and filed, and that the refusal to do this, under the circumstances, was such an abuse of its discretion as to require us to reverse its judgment and grant a new trial.

Judgment reversed, and cause remanded to the Court below, with instructions to permit the answer to be filed, as requested, by defendant.