Combs v. Combs

• Decision Date: 14 May 1897
• Citation: 41 S.W. 7
• Parties: COMBS et al. v. COMBS et al.
• Court: Kentucky Court of Appeals

41 S.W. 7

COMBS et al. v. COMBS et al.

Court of Appeals of Kentucky.

May 14, 1897

Appeal from circuit court, Perry county.

"Not to be officially reported."

Suit in equity by David Combs and others against John S. Combs and others to recover land. Transferred to the ordinary docket and heard by the court on the law and facts. Judgment for defendants. Plaintiffs appeal. Affirmed.

John L Scott & Son, W. W. Baker, and John Baker, for appellants.

E. E Hogg and Thos. H. Hines, for appellees.

DU RELLE, J.

In this case suit was brought in equity by appellants against appellees to recover 1,000 acres of land in Perry county, the plaintiffs averring in the original petition that the land descended to them from their father, Nicholas Combs, and that the appellees were in possession and had divided it among themselves, and had cut and were continuing to cut and carry away timber therefrom. A large number of amended petitions and amended answers were filed in the case, by some of which equitable issues were defectively presented. The appellee John S. Combs, among other things, pleaded 15 years' open and notorious claim to and possession of the property adverse to appellants and to all the world. He also pleaded that prior to January 1, 1875, he paid various sums to appellants for their respective interests in the estate of their father, which sums were retained by the appellants. No claim is made by appellants to a 100-acre tract held by appellee Combs, which appears to be included in the 1,000-acre tract sued for, but an express disclaimer of any claim to the "home farm" is found in one of appellants' pleadings.

The case was, on motion of appellee, transferred to the ordinary docket, and this is relied on as error by appellants. It is sufficient to say of this that no exception was taken to the order of transfer. That order was unusual in form, being copied in the record as follows: "This cause is stricken from the equity docket, per ordinary docket." It was, however, entered upon a motion in proper form, "to transfer this case to the ordinary docket"; and, while defective in form, we think it sufficient to indicate the intention of the court, and the case was thereafter treated by both parties as an ordinary action.

The answer of appellee stated, in substance, that he had paid appellants, respectively, various sums of money, in payment for their interests in their father's estate. To this a reply was filed, denying that said sums were paid them for their interests in their father's estate, and further alleging that such sums were paid for their interests in the home farm of 100 acres; and it is urged that, as no rejoinder was filed, the averments of the reply in this behalf must be taken as confessed. In this contention we are unable to concur, it appearing to us that the denial was sufficient, and that the additional averment that the money was paid for a part only of the boundary sued for was a superfluous and argumentative denial of the same fact. In our opinion, the reply did no more than make up the issue upon the question whether said sums were paid appellants for their interests in their father's estate.

There is considerable discussion in the briefs of the evidence contained in the bill of exceptions. The judgment appealed from was rendered March 15, 1894; the case, by agreement having been tried by the court upon the law and facts. On the same day, appellants entered a motion, and filed grounds for a new trial, which was overruled, and thereupon they prayed an appeal, and were given time until the third day of the next term of ...