Posey v. Green
Decision Date | 05 November 1879 |
Citation | 78 Ky. 162 |
Parties | Posey v. Green. |
Court | Kentucky Court of Appeals |
1. When the allegations of a pleading are so indefinite that the precise nature of the claim or defense is not apparent, the objection to the pleading must be by motion to make more definite, under section 134 of Civil Code, and not by demurrer. By failing to so move, the objection is waived.
2. The description of the land adjudged to be sold was sufficient. The commissioner's report describes the land by metes and bounds, and the judgment refers to his report for a description. The land was thus sufficiently identified to locate it.
APPEAL FROM HENDERSON COURT OF COMMON PLEAS.
MESSRS VANCE & CLAY FOR APPELLANT.
1. The reply of the appellee states nothing distinctly. It fails to allege the debt or debts upon which the $1,000 was to be credited. No rejoinder to it was necessary, because it was indefinite, and pointed to nothing with any certainty.
2. No description of the land is given in the judgment, as required by repeated decisions of this court. (Ross v Adams, 13 Bush, 370.)
W LINDSAY FOR APPELLEE.
1. The reply of the appellee makes affirmative and material allegations to which the appellant failed to make rejoinder and therefore they must be taken as true. (Civil Code, sec. 126.)
2. The description of the land adjudged to be sold is sufficient. No ruling of this court has ever been made that the omission to describe the land in the judgment is a reversible error.
This action was instituted by appellee against appellant upon a note for $3,940.89, secured by a lien on a house and lot in Henderson, Kentucky. Appellant answered, claiming that the note was entitled to a credit of $1,000, the purchase price of certain personal property sold by appellant to appellee, and setting up an agreement with appellee to that effect. To this answer appellee made reply in the following language:
He further states that he cannot determine how much if any will remain to be credited on the note sued on; that a suit was then pending against him by F. W. Posey to recover the sum of $1,200, which he, Green, had assumed to pay for appellant, Thos. Posey, and that if he is compelled to pay that sum, nothing would remain to be credited on the note sued on. To this reply appellant did not rejoin, and upon a trial on the merits, in which evidence was heard as to the amount of the indebtedness of appellant to appellee, and as to the nature of the claim of F. W. Posey, judgment was rendered in favor of appellee for the full amount of the note sued on, and for a sale of the house and lot, or so much of it as might be found necessary to pay the debt.
The first question is as to the sufficiency of the reply, and as to whether a rejoinder was necessary on the part of appellant.
Section 126 of the Civil Code requires that every material allegation of a pleading, not specifically traversed, must be taken as true; and section 134 provides, that " if the allegation of a pleading be so indefinite or uncertain that the precise nature of the claim or defense is not apparent, the court may require the pleading to be made definite and certain by amendment."
The complaint here is that the reply does not specifically set forth in detail the nature of the general...
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