Opinion
Decided March 15, 1927.
Appeal from Bell Circuit Court.
E.N. INGRAM for appellant.
STEWART STEWART for appellees.
Reversing.
In this equitable action to enjoin trespasses to realty the injured property cannot be identified by the description in the petition and the court erroneously overruled a demurrer to that pleading.
The answer cured the defect in the petition by identifying the property; it also justified defendant's conduct under an alleged order of the Pike circuit court directing the establishment of a road on the premises in question; but it does not set out the nature of the former suit, the names of the parties thereto, the issues joined or the final determination thereof, and is not good in that respect. It does contain a denial of all the alleged trespasses, but such denials are coupled with and based on defendants' right to act under the order named, and this does not constitute a traverse, hence that pleading stated no defense, but the court erroneously overruled a demurrer thereto. The reply attempted to controvert the affirmative matter of the answer, but this was done conjunctively and the court properly sustained a demurrer to it, but erroneously dismissed the petition. As the defect in that pleading had been cured by the answer, the court should have required both parties to reform their pleadings.
Wherefore, the judgment is reversed and cause remanded for proceedings consistent with this opinion.