
    Abigail H. Forsythe v. M. D. Lawler.
    [Abstract Kentucky Law Reporter, Vol. 3-473.]
    Verdict on Amended Petition.
    An amendment of a petition after a new trial is granted to cure a supposed defect in the petition, although erroneous, will not affect .the right'to claim under the first finding; but where a greater sum is sought to be recovered it amounts to an abandonment of the right to insist on the first recovery.
    APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.
    December 13, 1881.
   Opinion by

Judge Pryor:

It is not necessary to pass on the various questions made by the appellant as to the action of the court in granting a new trial. The order taking the petition for confessed was merely interlocutory, and when the new trial was granted this gave to the court a discretion as to the filing of appellee’s answer.

J. L. Clemmons, for appellant.

C. B. Muir, for appellee.

Whether the grounds for a new trial were or were not sufficient is rendered immaterial, as the appellant, after the new trial was granted, filed an amended petition in which'he claimed greater damages than in the original petition. There was no different cause of action' stated, but the amount of recovery was enlarged, so- that the appellant could have recovered, in the event the action could have been maintained, $3,000 instead of $2,500. If appellant proposed to stand by the former verdict no change should have been made by which a greater sum could have been recovered than on the action originally instituted. If a verdict had been rendered on the amendment for $3,000, under proper instructions and proof, the verdict should stand; and the appellant, therefore, will not be permitted to speculate upon the chances of recovering a larger sum by virtue of the amendment, and when failing to do so insist upon the verdict rendered in the original action. The amendment filed was a waiver of the right to rely on the verdict. The appellant was not compelled by any action of the court to claim the damages in order to have a standing in court, but voluntarily sought fe> recover more than was originally obtained.

An amendment curing a supposed defect in the petition pointed out by the court, although erroneous, would not affect the right to claim under the first finding, but where a greater sum is sought to be recovered it presents a different state of case and amounts to an abandonment of the right to insist on the first recovery.

The judgment below is, therefore, affirmed.  