delivered the opinion of the Court.
This was an action by petition in debt, the writ being returnable to the February term, 1843. At that term, the appellant^ pleaded nil debit, and a set-off. The cause was set for trial on the 12th March, 1844, but was not reached until the 13th; on the morning of that day, plaintiff filed replications, and the defendant afterwards, (and without having objected to the filing of the replications,) moved the court for a continuance, for the reason, that said replications were filed out of time. The court refused to grant the continuance, and gave judgment for the plaintiff. The error complained of, is the refusal of the court to grant the continuance.
The cases of Risher vs. Thomas, (1 Mo. Rep., 740,) and Dempsey vs. Harrison & Glasgow, (4 Mo. Rep., 270,) cited by the appellants, We consider conclusive of their right to a continuance, under the' circumstances.
In those cases, where a party had abandoned an issue in law, on the day set for trial, and amended his pleadings, by leave of the court, so as to put in issue the'merits of the cause, the opposite party was held entitled to a continuance: to force the party into trial, under such circumstances, was' considered a surprise *697•ppon him, as he could not be presumed ready to establish an issue in fact not presented by the state of the pleadings.
In the present case, the defendants could not anticipate that replications would be permitted out of time; and though the court undoubtedly had the power to grant such indulgence, a similar indulgence should have been extended to the adverse party, who, seeing his pleas unanswered, it is to be presumed, did not come prepared with proof to establish them.
The failure of the defendant to object to the replications, when they were filed, or his laches in not moving for a judgment of non pros., on the 12th, might constitute a very good reaspn why the defendant should have been precluded from insisting on such a judgment, on the 13lh, when the cause was called; but neither of these could deprive him of his right to a continuance, if he desired it.
Judgment reversed, and cause remandéd.