
    F. C. Evans v. George Rock et al.
    Trial — Answer Taken as True.
    A plaintiff is only entitled to a trial of a cause at the same term an answer is filed, by consenting that statements of the answer were true.
    Same.
    If such consent had been given, the defendant would have been entitled, on the averments of his answer, to a judgment dismissing the action.
    APPEAL FROM MCCRACKEN CIRCUIT COURT.
    April 17, 1869.
   Opinion of the Court by

Judge Hardin:

The judgment foreclosing the mortgage of Rock was rendered, against an objection of Evans, on the 21th of January, 1868.

At the same term Evans had been admitted as a party, and filed an answer alleging facts constituting a bar, if true, .to the plaintiff’s right to Nave a judgment forcing the mortgage, and which was made a cross petition, and was answered, and controverted by the plaintiff, and other parties.

According to section 395 Civil Code the .plaintiff was only entitled to a trial at that term, by consenting that the statements of the answer were true. If such consent had been given the appellant would have been entitled, on the averments of the answer to a judgment dismissing the action; no such consent having been given the trial was unauthorized and the judgment can not be sustained (Gruel & wife vs. Smally. 1 Duvall 358).

J. B. Husbands, for appellant.

Harlan & Newman, for appelle.

Wherefore the judgment is reversed for further proceedings not inconsistent with this opinion.  