133 Ky. 695 | Ky. Ct. App. | 1909
Opinion of the Court by
Affirming.
This action "wlas instituted by appellant against W. P. Yancey and the United States- Fidelity & Guaranty Company, his surety, for false imprisonment.
.At the first term of the court after the filing of the petition, appellee Yancey filed a general demurrer thereto. The court took time to consider the demurrer, and pending this motion Yancey filed his answer. At a subsequent term, by permission of the court, Yancey withdrew his answer and filed another. At the same term of the court the United States Fidelity & Guaranty Company filed its separate answer, and the court disposed of the general demurrer-by the following order, to wit: “The general demurrer heretofore entered to plaintiff’s petition herein having been considered by the court and the court sufficiently advised, said demurrer is sustained and leave given plaintiff to amend, to which plaintiff excepts, and plaintiff', declining to- amend, it
“(1) A general demurrer is an objection to a pleading because it does not state facts sufficient to constitute a cause of ¡action or a defense, or because it does not state facts sufficient to support a cause of action or a defense.
“(2) Failure so to make such objection is not a waiver thereof,” etc.
This section is conclusive of the first question raised by appellant.
The lower court did not err in sustaining the demurrer to the petition. It will be observed that the action wlas instituted against appellee Yancey as county judge of the Owen county court to hold him liable for damages which appellant claims to have, sustained by reason of the judge’s decision against' him on an examining trial, and for refusing to allow certain persons to have their names signed to his bail bond. It appears from the petition that appellant Was arrested under a warrant which was issued by appellee !a,s judge of the Owen' county court. While it is not stated in the petition the substance of the warrant under which he was arrested, nor is there a copy of it filed with the petition, it is intimated that
It is also .alleged in the petition, in substance, that the court required excessive bail of appellant; that he could have avoided going to prison, however, but for the fact 'appellee Yancey refused-to permit one Stonestreet or Gayle, or both of them, to have their names sighed as surety to said bond, which they were willing and offered to do as by law required. It was also alleged that Yancey said at the time that either of the gentlemen would have made the bond “good.” It is not alleged that either of them offered to sign the bond, but it is alleged that both of -them offered to “have” their naipes signed to the bond. By section 482, Ky. St., it'is-provided: “Np person shall be bound as -the surety for another by .the act of an agent, unless -the authority of the agent is in writing, signed by the principal,” etc. It is not alleged in the petition that Stonestreet or Gayle in this manner
For these reasons, the judgment of the lower court is affirmed.