Ford Lumber & Manufacturing Co. v. Burt & Brabb Lumber Co.

157 Ky. 706 | Ky. Ct. App. | 1914

Opinion of the Court by

Chief Justice Hobson—

Beversing.

The Ford Lumber and Manufacturing Company brought this suit against the Burt and Brabb Lumber Company on August 25, 1903. On September 28, 1903, the defendant moved the court to strike from the petition certain allegations contained in it. The case was set for trial at that term but was continued generally. Similar orders were made until September 29,1911, when this order was entered:

“The court being advised upon the defendants demurrer to the plaintiffs petition, it is ordered that said demurrer be, and it is sustained. The plaintiff having announced that it did not desire to plead further and failing so to do it is ordered that its petition be, and it is hereby dismissed, and it is adjudged that the defendants, Burt and Brabb Lumber Company, recover of the plaintiff, Ford Lnmber and Manufacturing Company, its costs herein expended.”

On July 11, 1913, the appeal before us was sued out by the plaintiff before the clerk of this court. It is insisted for the defendant that it had filed no demurrer to the plaintiff’s petition; that the above judgment is for' that reason void, and no appeal can be prosecuted from it until a motion had been made in the circuit court to set it aside. But we can not concur in this view. In Miles v. Collins, 1 Met., 308, there was simply an entry on the record that the defendant demurred to the whole case. The judgment was sustained, the court saying that this was not a very artificial but was certainly quite a significant mode of statement of what the party did. The order here shows that the court considered the defendant’s demurrer to the plaintiff’s petition and that the demurrer having been sustained, the plaintiff announced that it declined to plead further. We must presume upon-this record that the defendant demurred to the petition, but did not file a demurrer in writing and that the court acted on the demurrer overlooking the fact that it had not reen reduced to writing and filed. In American Wire Nail Co. v. Bayless, 91 Ky., 103, it was field tfiat although one of tfie defendants did not demur and tfie court when tfie case was submitted sua ponte raised a demurrer to tfie pleading and dismissed it on tfie ground tfiat it did not state sufficient facts, tfie judgment was valid and was affirmed-.

This firings us to tfie merits of tfie case. Tfie petition sufficiently avers tfiat tfie plaintiff was tfie owner of certain trees and that tfie defendant wilfully cut and converted them to its own use to tfie plaintiff’s damage in tfie sum of $8,000, tfie defendant well knowing at the time of the wrongful conversion tfiat tfie trees were tfie property of the plaintiff. Tfie action is not for trespass as it is not averred tfiat plaintiff was in possession of tfie trees. Tfie action is for conversion of the trees and their value should have been alleged. But while tfie petition does not aver tfie value of tfie trees, it describes them, giving their size, qualities, etc. From tfie facts stated it must be presumed they were of some value; the plaintiff was at least entitled to some damages, and punitive damages may fie allowed on tfie facts stated in tfie petition. Tfie petition was sufficient on demurrer; the demurrer to it should have been overruled.

We do not pass on tfie motion to strike from tfie petition, as tfiat motion has not been acted upon in tfie circuit court.

Judgment reversed and cause remanded for further proceedings consistent herewith.