194 Ky. 141 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
Appellant, Mary P. 'Shelby, brought a suit in ejectment against appellees, Isaac Shelby and Steele Shelby, to recover the possession of a tract of land, and in doing so averred: “Plaintiff, Mary P. Shelby, states that she and one Florence Shelby, her sister, are the owners of and entitled to the immediate possession of that certain tract of land in Lincoln county, Kentucky, on the waters of Knob Lick creek that is known as Arcadia, ’ ’ and then follows a minute description of the-boundary of land sought to he recovered. It is also further averred in the petition that the defendants, Isaac Shelby and Steele Shelby, are in possession of said real estate, and have “failed and refused to vacate said premises after demand made, and wrongfully keep plaintiff out of the possession.”
Appellees filed a special demurrer to the petition for defect of parties plaintiff, which was sustained, and upon plaintiff’s refusal to further plead the action was dismissed and Mary P. Shelby appeals. This objection is bottomed upon the ground that the petition shows that
In discussing this question, Newman in his work on Pleading and Practice, section 126, says: “In. actions for
As a defect of parties was apparent upon the face of the petition it was subject to special demurrer under subsection 4 of section 92 of the Civil Code, which provides that, “a special demurrer is an objection to a pleading which shows .' . . that there is a defect of parties plaintiff or defendant.” The same Code provision requires objection to he made to such defect of parties plaintiff or defendant, when or before there is filed a pleading other than a demurrer, and if no objection is made in this manner or by other appropriate pleading, the objection is waived, and the single plaintiff, as in this case, will he allowed to prosecute the action to judgment.
When the defendants below by special demurrer raised the question of defect of parties plaintiff, and this defect was apparent from an examination of the petition, the trial court properly sustained the demurrer with leave to the plaintiff to amend, hut upon her declining to further plead and to make her joint owner of the lands in controversy a party either plaintiff or defendant, the trial court could do but one thing, dismiss her action.
Judgment affirmed.