
    Case 46 — PETITION ORDINARY
    May 15.
    Myers, Administrator v. Douglass.
    APPEAL. FROM LINCOLN CIRCUIT COURT.
    1. Verification — Waiver.—While section 473 of the Kentucky Statutes, provides that “the execution of a writing on which'a suit or defense is founded, or its assignment, shall only be denied by answer or other pleading verified by oath,” yet the Civil Oode, section 138, provides when the objection for want of verification must be made, and -if it 'is not made at that time, it is waived.
    HILL & MoROBERTS for appellant.
    1. The 'paper styled an 'answer was not an answer, because under the express terms of section 473, Kentucky Statutes, it must be sworn to before it 'becomes such; 'and appellant’s right ¡to move the court for a judgment, notwithstanding the verdict, could not have been waived. That motion should surely have been sustained. (Ky. Stats., sec. 473; Civil Oode, sec. 386.)
    2. The plea ¡of non est factum is required always to be sworn to, because the courts would, in favor of innocence, presume' a paper 'purporting 'to be signed by a party to be charged on it, was genuine until it was attacked by plea under oatb. (Trustees Orphan School v. Fleming, 10 Bush, 237.)
    W. G. W’ELCH and R. C. WARREN for appellee.
    1. The jury had been sworn, all the testimony bad been adduced, and the defendant sworn and bad testified under oatb that be did not execute the note, and it was then too late to make the 'objection, and it had thereby been waived. (Civil Oode, sec 138, 70 111., 41.)
   JUDGE PAYNTER

delivered the opinion of the court.

This action was on a promissory note. Tbe plea was non est factum. After a trial and verdict for tbe defendant the plaintiff moved the court for a judgment for him, notwithstanding- the verdict, because the answer was not verified.

Unitl after the verdict no question seems to have been made that there was no verification of the answer. There is no question made nor could there be that the answer did not contain facts sufficient to constitute a good plea of non est factum.

Section 473, Kentucky Statutes, provides that “the execution of a writing on which a suit or defense is founded or its assignment shall only be denied by answer or other pleading verified by oath.”

It is obvious that the answer should have been verified by oath. The court, on having- its attention called to the want of verification of the answer, would have refused to allow it to be filed; or, having permitted it to be filed without verification, then certainly on defendant’s refusal to verify it would have authorized the court to have stricken it from the record. There was no objection to the fiilng of the answer, nor was there any motion to require the defendant to verify it..

Section 138, Civil Code of Practice, provides that “no objection shall be taken after the commencement of the trial to any pleading for the want of or a defect in the verification.”

While the statute requires the verification of the answer, yet the Code provides when the objection shall be made. If not then made it is waived.

The judgment is affirmed.  