Arnold v. Williams

4 Ky. Op. 462, 1871 Ky. LEXIS 228

• Court: Court of Appeals of Kentucky
• Decided: May 13, 1871
• Status: Published

Opinion

Opinion oe the Court by

Judge Hardin :

Tbe principal question in this case and tbe only one we need to decide, is as to tbq sufficiency of tbe petition, which was involved by tbe action of tbe circuit court in sustaining tbe demurrer to tbe answer of tbe appellant.

Due notice of tbe protest of the bill, which was tbe foundation of tbe action, was necessary to bind the appellant as endorsers.

Tbe only allegation in tbe petition of tbis is that “said parties to tbe same were duly advised of said acceptance being protested.”

Was that a sufficient averment of tbe essential fact that H-e notice required by law was given in proper time and in tbe manner necessary to bind the endorser of tbe bill? According to tbe rule that tbe plaintiff must state “facts constituting” bis cause of action? (Civil Code, section 118.) We are of tbe opinion that tbe allegation stated does not with sufficient certainty impart a statement of facts from which tbe court could determine that notice of protest was given as tbe aw required. Tbe petition does not allege when, bow, or by whom, tbe appellant was “advised” of tbe protest; and tbe statement, in effect, that be was duly advised of tbe fact, is but tbe pleader’s conclusion that tbe law was complied with, without tbe disclosure of facts from which tbe court could judge whether it was or not.

Tbe demurrer should therefore have been applied and sustained to tbe petition.

Wherefore, tbe judgment is reversed, and tbe cause remanded for further proceedings not inconsistent with tbis opinion.