Judges: OPINION OF THE COURT BY JUDGE CAMMACK
Attorneys: Daniel W. Davies for appellants.
H.W. Vincent for appellee.
Filed: Mar. 14, 1944
Latest Update: Mar. 02, 2020
Summary: Reversing. This motion for an appeal from a default judgment in favor of the appellee in the amount of $450 must be sustained because the judgment is not supported by the pleadings. The petition undertakes to state a cause of action on a promissory note, but there is no averment of a promise on the part of either of the appellants to pay any sum of money. The alleged note was not copied into the petition nor, indeed, was it even filed as an exhibit. It may be gathered from the prayer of the peti
Summary: Reversing. This motion for an appeal from a default judgment in favor of the appellee in the amount of $450 must be sustained because the judgment is not supported by the pleadings. The petition undertakes to state a cause of action on a promissory note, but there is no averment of a promise on the part of either of the appellants to pay any sum of money. The alleged note was not copied into the petition nor, indeed, was it even filed as an exhibit. It may be gathered from the prayer of the petit..
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Reversing.
This motion for an appeal from a default judgment in favor of the appellee in the amount of $450 must be sustained because the judgment is not supported by the pleadings. The petition undertakes to state a cause of action on a promissory note, but there is no averment of a promise on the part of either of the appellants to pay any sum of money. The alleged note was not copied into the petition nor, indeed, was it even filed as an exhibit. It may be gathered from the prayer of the petition the alleged note was executed in the amount of $450, but the petition charges only that the appellants executed "their joint promissory note due and payable four months after date;" that no part of it has been paid; and that the appellee is the holder of it in due course. The cases of Bank of Anderson County v. Foster, 146 Ky. 179, 142 S.W. 225; Davidson v. Falls, 215 Ky. 368, 285 S.W. 209; and Preece v. Burns' Adm'r,258 Ky. 839, 81 S.W.2d 881, support the conclusions stated herein.
Judgment reversed, with directions to set it aside, and for proceedings consistent with this opinion.
