Jenkins v. Bates

4 Ky. Op. 118, 1870 Ky. LEXIS 292

• Court: Court of Appeals of Kentucky
• Decided: September 27, 1870
• Status: Published

Opinion

Opinion op the Court by

Judge Robertson:

The defect in the original petition was in charging the appellees, as aiders and abettors of a confederate officer in tortiously taking his property, without any description of the property ■which might so far identify it as to bar another action for the same trespass. On that technical - ground a demurrer to the petition, in the first instance, might have been sustained. But instead of demurring the appellees filed an answer waiving that objection and traversing all the material allegations. On the issue thus joined the appellant took depositions as required. proving that the appellees themselves took his property, and identifying it by a general and sufficient description. After all this the circuit court erred in permitting the appellees to withdraw their answer and file a demurrer to the petition, and also in thereiipon sustaining the demurrer. And, after the appellant had amended the petition by charging the appellees with being the principal trespassers and converting the property to their own use, the circuit court ought not to have rejected it and dismissed the petition.

Lilly, for appellant. Rodman, for appellees.

Wherefore the judgment is reversed and the cause remanded for amended pleadings and further proceedings.