Trustees of Lebanon v. Forrest , 54 Ky. 168 ( 1854 )

Chief Justice Marshall

delivered the opinion of the Court—

According to the statements of the petition, there was a dedication by Forrest of the street called Forrest street, in his addition to* the town of Lebanon, and yet there being no conveyance of said street by deed to the trustees, it seems to us that whether an ejectment could or could not have been maintained by the trustees against the intruders upon it, the remedy in equity for permanently establishing and dedaring the right is not only sustainable, but is altogether the most suitable. Besides, it is expressly dedared by the original as well as the amended Code, (New Code, sec. 7,) that an error as to the kind of proceedings shall not cause the abatement or dismissal of the action, but merely change it into the proper proceeding by amendment, and a transfer to the 1 , J ’ proper docket, for effecting which by either party the ProPer mode is pointed out in the following sections. Rut a demurrer is not one of these modes, and is not ,. , , . . ... .. applicable to the question, whether the proceeding s^ou^ have been at law or in equity, it is only applicable to the question of jurisdiction, under the 120th section of the Code, when the court in which th.e action is brought has no iurisdiction of it either . ° 0 at law or m equity. This is manifest from the 12th se°tion, which declares that an error as to the kind of proceedings adopted in the action, is waived by a „ .f . & \ ’ . , J laiiure to move lor its correction m the time and manner Prescl’ibed in that chapter, which does not name a demurrer, and therefore excludes it.

Code Bf Praotiee, section 7, ror of tlNpiaintiff as to the kind of proceeding adopted ^abatement"or dismissal of the action, but merely a change procceffing^by an amendment and1^ transfer of the action to the proper docket.” rerisnotthesippropriate mode of raising the question whething^houM Chave been at law or only^app’iieable to the question of jurisdiction under the 120th section of the Code of Practice, when the question is whether the court has jurisdiction either at law or in equity. 4. The 12th section of the Code requires that when the petition is in equity, when it Bhould have been at law, or at law when it should have been in equity, it is to be reached by motion, and if not so moved it is waived.

Wherefore, the judgmentis reversed and the cause remanded with directions to disregard or overrule , the demurrer, and for further proceedings,