Elkins v. Burke

Opinion op the Court by Judge Tilpord — Dismissing appeal. By this action appellees sought and recovered $150, the alleged value of trees unlawfully cut and removed from “a tract of land adjoining the lands of the defendants.” The petition contained no other description of the land, and hence, as contended by appellants (defendants below), was fatally defective. Hackney et al. v. Dillan et al. 9 Ky. Op. 38; Cray v. Peay, Ky., 82 S. W. 1006. The appellants merely traversed the allegations of the petition and neither asserted title to the land nor described it in their answer on which the action went to trial. The testimony is not before us. Because of the failure of the parties to describe the land in any of the pleadings under which the action was tried, the title to land was not directly involved, from which it follows that this court has no jurisdiction to reverse or affirm the judgment. Kentucky Statute, Section 950-1. See, also, Laurel County v. Hubbard, 263 Ky. 381, 92 S. W. (2d) 359. The interlocutory order previously entered overruling appellees’ motion to dismiss the appeal is set aside and the appeal dismissed.