
    N. Grief v. A. Maks, Etc.
    Pleadings — Amendments—Lost Pleading.
    The amended petition filed January 4, 1869, was still pending when the defendant offered to file his answer thereto and cross-petition, and as the matter of the lost pleading was such, if true, as to authorize the relief it sought, as a cross-petition as well as to constitute a defense to the plaintiff’s claim to further relief than had already been adjudged. The court should have allowed the answer to be filed, although the plaintiff had dismissed his amended petition.
    APPEAL PROM MCCRACKEN CIRCUIT COURT.
    January 11, 1871.
   Opinion by

Judge Hardin:

The amended petition filed January 4, 1869, was still pending on the 20th of January, 1870, when the defendant, N. Grief, offered to file his answer thereto and cross-petition, and as the matter of the lost pleading, was such, if true, as to authorize the relief it sought, as a cross-petition as well as to constitute a defense to the plaintiff’s claim to further relief than had already been adjudged. The court should have allowed the answer to be filed; and although before the action of the court in refusing to allow the answer to be filed the plaintiff dismissed the amended petition, yet as the action was still pending for some purposes, and further proceedings were required to complete the relief sought by the plaintiff, it would have been proper to permit the filing of the paper offered and rejected as a supplemental answer and cross-petition for vacating the judgment and sale to King and subsequent proceedings asked to be set aside on the ground and for the reasons disclosed, and the court erred in refusing to let it be filed. The clerk, who has failed to copy the amended petition, states that it is not on file, but does not explain why it is not, but it may be proper on the return of the case to require is production, on the motion of either party, if possible, or an explanation of its absence. This would seem to be due to the parties as well as to the clerk.

Therefore the judgment is reversed and the cause remanded with instructions to permit the answer and cross-petition to be filed, and for further proceedings not inconsistent with this opinion.

Yeiser, for appellant.

Bramlette, for appellee.  