Chenault v. State Bank & Trust Co.

71 S.W.2d 1015, 254 Ky. 390, 1934 Ky. LEXIS 102

Opinion

Opinion of the Court by

Stanley, Commissioner

Affirming.

The appellants, Harvey Chenault, by his next friend, and Douglas Chenault, his brother, by intervening petitions, sought an accounting by the appellees, State Bank & Trust Company and their father, T. D. Chenault, Jr., •for the diversion of certain trust funds. The appellee Chenault’s answer substantially admitted the material charges of the petitioners and asked an adjudication of the rights of the parties. The State Bank &' Trust Company’s demurrer to his ansivdr was sustained. The trust .company fully traversed the. allegations of the intervening petitions. The evidence on the issues thus, formed was heard' orally by the court, and a judgment was rendered dismissing the intervening petitions...From, that judgment the petitioners appeal. T. D. Chenault,' Jr., has not appealed or filed a cross-appeal.

The motion of the appellants to file a transcript of' the evidence as an additional record has heretofore been overruled. We therefore have only the pleadings and the judgment before us. In such case the only question before the court is the sufficiency of the pleading to sustain the judgment, as it will be presumed that the evidence would do so. Lewis v. Kash, 239 Ky. 117, 38 S. W. (2d) 978; Reneer v. Centertown Educational Corporation, 253 Ky. 328, 69 S. W. (2d) 718. The denial, of everything upon which the right of action was based, obviously is sufficient to sustain a judgment against one who has stated a cause of action and assumed the burden of maintaining it.

The judgment is affirmed.