Ashurst v. Dixie Block Coal Company

20 S.W.2d 1011, 230 Ky. 812, 1929 Ky. LEXIS 189

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: October 11, 1929
• Status: Published

Opinion

Opinion op the Court by

Drury, Commissioner—

Eeversiug.

A demurrer was sustained to the petition of Ashurst by the trial court, and he appeals. In his petition he alleged the Dixie Block Coal Company (a Kentucky corporation) had wrongfully entered on his land and mined and removed therefrom coal worth $5,250. He alleged that after that was done, Pearl Warren and three others, the stockholders of the corporation, had caused it to sell all its property and divide the proceeds among them.He joined these stockholders as defendants, asked for judgment for his claim, etc.,

The defendants moved the court to require plaintiff to elect whether he would prosecute his cause of action against the corporation or against the individual defendants. They also filed a general demurrer to the petition. The court sustained the motion to elect, the plaintiff declined to elect, whereupon the court sustained the demurrer to the petition, the plaintiff declined to amend, aiid the-court dismissed his petition.

The petition, though not in the best of form, did state a cause of action, and when the plaintiff declined to elect, the court should have stricken out his cause of action against the individual defendants. See section 85 of Civil Code of Practice. This should be stricken without prejudice, as the plaintiff may desire to renew that action after his controversy with the corporation is concluded.

The judgment is reversed.