First Nat. Bank v. Stephens & Steely

• Decision Date: 03 March 1914
• Citation: 163 S.W. 1097,157 Ky. 663
• Parties: FIRST NAT. BANK v. STEPHENS & STEELY.
• Court: Kentucky Court of Appeals

163 S.W. 1097

157 Ky. 663

FIRST NAT. BANK v. STEPHENS & STEELY.

Court of Appeals of Kentucky.

March 3, 1914

Appeal from Circuit Court, Whitley County.

Action by Stephens & Steely against the First National Bank, with counterclaim by defendant. Judgment for plaintiffs, and defendant appeals. Affirmed.

J. B Snyder, B. B. Snyder, and H. C. Gillis, all of Williamsburg for appellant.

Stephens & Steely and Tye & Siler, all of Williamsburg, for appellees.

CARROLL J.

The appellees, Stephens & Steely, attorneys at law, brought suit against the appellant bank to recover $225 attorney's fees and $7.80 for expenses. The bank, in its answer, after denying that it owed the attorneys anything set up a counterclaim of $34.60, and sought to recover judgment for this amount. On a trial of the case before a jury, there was a judgment against the bank, and it appeals.

One of the grounds relied on for reversal is that the petition did not state a cause of action, and therefore the court erred in overruling the general demurrer, and also the motion to make the petition more specific.

The petition is not aptly drawn, and the motion to make it more specific, as well as the demurrer, should have been sustained. But the failure of the court to so rule was not prejudicial, for, when taken in connection with the answer and reply, it furnished to the defendant full information concerning the cause of action asserted by the plaintiff's, and it is quite evident that the defendant did not go into the trial ignorant of the issues it would be required to meet.

It is argued that another serious error was committed by the court in the action taken concerning an amended petition. It appears that, at the conclusion of the evidence for the plaintiffs, the defendant moved the court to direct a verdict in its favor upon the ground that the petition did not state a cause of action authorizing a recovery by the plaintiffs. Thereupon the court permitted an amended petition to be tendered, reserving for future action whether it should be filed. After the evidence for the defendant was in, the court permitted the amended petition to be filed, and thereupon the defendant, claiming to have been taken by surprise, asked that the swearing of the jury be set aside and the case continued, which motion was overruled.

After reading the pleadings and the evidence, we are not prepared to agree with counsel for the appellant that it was not advised of the issues until the amended petition was tendered, or that the filing of this amended petition was necessary to constitute a cause of action on the part of the plaintiffs sufficient to sustain a judgment. The amended petition merely stated more specifically the cause of action and the defendant was not prejudiced by the action of the court in reserving the question of filing it or in filing it although, as a matter of practice, we should say that, when the amended petition was tendered, the court should then have either refused to allow it to be filed...