McElroy v. Winfrey

1 Ky. Op. 176, 1866 Ky. LEXIS 253

• Court: Court of Appeals of Kentucky
• Decided: June 15, 1866
• Status: Published

Opinion

Opinion op the Court by

Judge Peters:

The demurrer to the answer brings up for judicial examination also the pleadings of the plaintiff, and if they are found wanting, the correction must be first made by him, who has committed the first error, for until all is right with him, his complaint of the errors of his adversaries shall not be heard.

Is the plaintiff’s statement of his own case sufficient to entitle him to the judgment he seeks ? We think not.

The note, or writing, which is the foundation of his action, is filed as a part of his petition, and by it, the appellants undertake to pay him the sum therein named “ as soon as drawn from the United States by said McElroy, at the rate of $45 per three months.” And in order to enable appellee to recover he must allege that the sums sufficient to satisfy his debt have been drawn by said McElroy from the United States, or that by the negligence, default, or misdoings of appellants, or one of them, they have not been drawn, and as the petition contains no such allegations it fails to state facts sufficient to authorize a recovery. Wherefore, the judgment is reversed, and the cause remanded, with directions to sustain the demurrer to the plaintiff’s petition, and for further proceedings consistent herewith.