
    B. F. Minzer v. Willman Mercantile Company.
    Filed December 19, 1899.
    No. 9,067.
    1. Pleading: New Matter in Answer: Reply: Trial: Review. If, during the trial of an action, new matter pleaded in the answer is treated by the parties as denied -or placed in issue, it will be so considered in this court, although no, or an imperfect, reply was filed.
    
      3. Failure to File Instructions: Exceptions: Review. The charge of a trial court should be filed with the clerk before read to the jury; but that it was not done is not available error, unless the complainant excepted to such omission at the time.
    3. Action on Account: Sueeiciency oe Petition. Objections to the petition herein held not well grounded, and not available.
    Error from the district court of Webster county. Tried below before Beall, J.
    
      Affirmed.
    
    
      James McNeny and Ohaney & Walden, for plaintiff in error.
    
      James S. Gilliam and Robert T. Potter, contra.
    
   Harrison, C. J.

In this action in the district court of Webster county the defendant in error declared upon an account and demanded judgment against the plaintiff in error for the stated sum. The answer admitted the existence of the account, and alleged matters of counter-claim. There was filed what was no doubt intended for a reply. A trial resulted in a verdict and judgment for the defendant in error.

It is urged for the plaintiff in error that there was no reply, and that the pleas of new matters in the answer were admitted. What was evidently intended for a reply was filed, and appears in the record as follows: “Comes now the plaintiff, and denies each and every allegation of new matter therein contained.” We need not consider the availability of this as a plea to the answer, for the reason that, to the extent it is disclosed by the record, the parties participated in a trial and treated the averments of the answer as denied, and, under such circumstances, the objection that no reply was filed was waived. See Western Horse & Cattle Co. v. Timm, 23 Nebr., 526; Missouri P. R. Co. v. Palmer, 55 Nebr., 559.

It is argued that the instructions were not filed with the clerk. It is not shown that the plaintiff in error objected to the Instructions on the ground now urged; and this renders the complaint at this time unavailable. See Fry v. Tilton, 11 Nebr., 456.

It is also contended that the petition was defective, for that in the copy of the account attached thereto there was no dollar mark at head of any column or at any place in the account. While it is true that there was not a dollar mark in or on the copy of the account, some of the columns of figures were made in such manner and used in connection with terms which clearly and unmistakably indicated the import of the figures. Moreover, the account, as shown by the copy, was admitted in the answer. It follows that the judgment of the district court will be.

Appirmed.  