
    A. J. Payne v. James Monk, etc.
    Appeal — Reversal—Pleading.
    The failure to file an amended petition at the term of court succeeding the filing of the mandate of the Court of Appeals- was held not ground for reversal.
    Pleading — Amendment—Dismissal.
    When leave has been given plaintiff to amend his petition but he fails to do so, a motion should be made to dismiss the action, or a rule asked for requiring plaintiff to show cause why he had failed to prepare his cause for trial.
    Pleading — Amendment—Discretion of Court.
    It is discretionary with the -court to permit or refuse the filing of an amended petition.
    APPEAL PROM ROCKCASTLE CIRCUIT COURT.
    January 4, 1873.
    
      
      A. J. Moore, for appellant.
    
    
      Kirtly, for appellees.
    
   Opinion by

Judge Pryor:

The failure to file the amended petition at the term of the court succeeding the filing of the mandate of this court is no ground for reversal. " Leave had been given the appellee to amend his petition and upon his failure to do so, a motion should have been made to dismiss the action, or a rule asked for requiring the appellee to show cause why he failed to prepare his cause for trial. The amended petition was filed and an issue made upon it by the answers. It was discretionary with the court to' permit it to be filed or not, and we can not see how the appellant has been prejudiced. He has been fully heard and much proof taken on both sides. The judgment was proper and must be affirmed.  