281 S.W. 187 | Ky. Ct. App. | 1926
Reversing.
On November 14, 1924, the appellee, Casper Krebs, filed an equity action in the McCracken circuit court against T.S. Heady, alleging in his petition that Heady owed him a note amounting to $540.00 which would become due on the 10th day of April, 1925, but that defendant was about to depart from the state with the intent to defraud his creditors and was concealing his property so that the process of the court after judgment could not reach it, and he sought to be indemnified to the extent of his debt and cost by attaching enough of defendant's property for that purpose, after alleging the necessary grounds therefor, all of which proceeding was had pursuant to the provisions of section 237 of our Civil Code. After that debt matured an amended petition was filed setting up the fact that Henry Lawrence was indebted to the defendant, Heady, which was evidenced by a note for $600.00 and due on December 11, 1924, and he was duly summoned as a garnishee in the case. Summons was issued for Heady but was never executed on him, nor was he proceeded against by warning order. But before any orders in the case, except the filing of the amended petition, the appellant, Bellamy, filed his intervening petition in the cause in which he alleged that the defendant, Heady, had transferred to him the Lawrence note for a valuable consideration and before it became due or was attached and that he was the owner thereof and entitled to its proceeds, and he prayed that it be so adjudged on a final submission of the cause. *375 That pleading was not responded to, nor were its allegations denied by any order of court. Notwithstanding such failure to deny, the parties took proof and upon submission the court dismissed appellant's intervening pleading and from that judgment he prosecutes this appeal.
We are precluded from considering the evidence heard upon the trial, since it is the universal rule that undenied material allegations must be accepted as true, for it is also the rule that there must be both allegation and proof in order to entitle the litigant to the relief he seeks. Waiving, therefore, in this case the sufficiency of the testimony taken to warrant the judgment appealed from, but accepting its sufficiency for that purpose, we then have a case where there is proof but no (controverting) allegation.
Appellant's right to file his intervening pleading in this character of case is guaranteed to him by the provisions of section 29 of our Civil Code. But it is therein said that his petition which he files in the action should be verified, and it was not done in this case, nor was there any order of the court making him a party to the action. However, neither of those omissions are available to appellee on this appeal. It is true that it was held by this court in the case of Park v. McReynolds,
In further support of the rule of practice as so announced, section 138 of the Civil Code says: "No objection shall be taken, after the commencement of the trial, to any pleading for the want of, or a defect in, the verification,' and it was held in the case of Butler v. Church of Conception, 14 Bush 540, and Mentor v. Turpin, 4 Met. 93, that the right to require verification is waived by responding to the unverified pleading without objecting to its want of verification.
That the failure of the court by an order to make appellant a party to the action is unavailing at the present stage of the cause was so held by us in the case of Schwein v. Sims, 2 Met. 209, and that holding was approved and adopted in the subsequent cases of Crowe v. Straw, 14 K. L. R. 206, and Craddock v. Barnett,
There is no alternative, therefore, except to reverse the judgment, and it is so ordered, with directions for proceedings in accordance with this opinion.
