Stewart v. Gilbert , 2 Ky. Op. 217 ( 1868 )

Opinion op the Court by

Judge Peters:

If the action was heard before it stood for trial as alleged, that was a clerical misprision Sec. 578 O. C. for which this court would not reverse the judgment; until the objection had been presented and acted on by the court rendering the judgment, which does not appear to have been done in this case.

Besides the facts as alleged in the petition do not state a cause of action, it is alleged that the property sold was Mrs. Stewart’s and that her property was exchanged for it; but the petition does not state how she became entitled to it, what kind of property was exchanged, nor how she held it. The allegation that it was hers and she exchanged her property for it, are the mere conclusions of the pleader, or of the plaintiffs, the character of property whether real or personal, and the manner in which she derived title to it, should have been set forth, so as to enable the court to decide, from the facts alleged whose property it was.

Appellants have failed to alleged facts in their petition which would authorize the granting the relief they seek, and if either or both of them shall suffer loss, it is the consequence of a fatal supineness from which the courts can afford no escape.

Wherefore the judgment is affirmed.