#### S. P. Pool v. F. P. Pool. S. P. Pool v. F. P. Pool.

(Decided November 12, 1920.)

Appeals from Caldwell Circuit Court.

1. Pleading—Failure to Paragraph Pleading.—Defendant failed to paragraph an answer as directed by court and his pleading was *505stricken from the record, but at the next succeeding term of court the pleading, in paragraphed form, was tendered before judgment. Held, that the court erred in refusing to. allow this pleading to be filed.

2. Pleading—Amendments.—When the filing of an amended or supplemental' pleading will promote justice and will not prejudice the opposing side, generally speaking, the court should allow it to be filed, the ends of justice being the better subserved by permitting parties to plead to an issue.

MILLER & MORSE for appellant.

J. E. BAKER for appellees.

Opinion op the Court by

Judge Quin

Reversing.

The parties to these appeals are the four sons of W. H. and Frances Pool. The father died intestate about 1896. At the time of his death he owned a house and lot in Princeton, Ky. The mother died in the latter part of 1914. Thereafter a suit was instituted by F. P. Pool, one of the sons, against the others asking a sale of the property and a distribution of the proceeds to those entitled thereto. To this petition S. P. Pool filed an answer, counterclaim and cross-petition alleging he had satisfied a judgment against his father on a vendor’s lien on said property, and had expended other sums for taxes, insurance and repairs. A motion to paragraph this pleading was sustained, but upon S. P. Pool’s failure to comply with this order of court, the pleading was stricken from the record. At the succeeding term of court a similar pleading duly paragraphed • was tendered. On the same day a judgment was entered ordering a sale of the. property. The court declined to permit the pleading to be filed, but had same made a part of the record. From this judgment an appeal was taken, but as it was not from a final order the appeal was dismissed. 182 Ky. 241, 206 S’. W. 274. Same case on rehearing, 183 Ky. 341, 209 S. W. 62.

In January, 1918, F. P. Pool instituted .an action against S. P. Pool, seeking the recovery of one-fourth of $500.00 which he alleged had been collected by defendant as rent on the real estate above referred to since the date of the mother’s death. In his answer, which was made a counterclaim and set off, defendant denied he had collected more than $372.00 in rent, affirmatively pleading the same matters contained in his answer in the first case, with the addition of other items paid since the first plead*506ing was filed,, A demurrer was sustained to this pleading and defendant appealed. Not being advised as to the status of tbe first suit this court on December 19, 1919, concluded that if judgment bad not been entered in tbe first case, after its return to tbe lower court, tbe two suits should be consolidated or heard together. Publication of this opinion was withheld pending a petition for rehearing as to the apportionment of costs. In the meantime a judgment and order of distribution had been entered in the first case and an appeal taken therefrom. In this order of distribution no allowance was made to S. P. Pool for any of the items set forth in his answer and counterclaim. Indeed he has never had a hearing on this pleading, though he has made three attempts in the two cases to get it before the court.

To avoid further confusion in this already complicated litigation we have concluded to let this one opinion in the two cases dispose of the pending petition and appeals.

Every litigant is entitled to his day in court; this S. P. Pool has not had. The paragraphed pleading was tendered at the next succeeding term following that at which the former pleading was stricken from the record. It was tendered before the entry of the judgment. Under the Practice Act, Civil Code, section 367a, the lower court, in its discretion, may permit a pleading to be filed after it is due. Courts have been rather liberal in regard to the filing of pleadings—this is as it should be.

The ends of justice will be the better subserved by permitting parties to plead to an issue and proceed to a trial of their controversy and to the rendition of a judgment in conformity to the facts on the merits of the case, where this can be.done without violating some positive provision of law or practice. Mutual Life Ins. Co. of N. Y. v. Evans, 185 Ky. 335, 214 S. W. 927. Generally speaking, when the filing of an amended or supplemental pleading will promote justice and will not prejudice the opposing side, the court should permit it to be filed. Civil Code, section 134. The only 'limitation upon the discretion of the trial court in allowing pleadings to be filed is that they must be in furtherance of justice, and must not change substantially the claim or defense. Greer v. City of Covington, 83 Ky. 410. To refuse a party the right to amend would be the exception rather than the rule.

In the present instance the tendered pleading did not present any new defense or plea, but merely, in compli*507anee with the orders of court, presented the former pleading in paragraphed form. Nor can it he said to have come too late, tendered as it was at the following-term and before judgment.

Being of the opinion the lower court erred in refusing to permit the filing- of the pleading of S. P. Pool, both judgments will he reversed with instructions to file said pleadings, and hear the two cases together, and for such further proceedings as may not be inconsistent herewith.