Opinion
October 15, 1946.
Appeal from Breathitt Circuit Court.
M.K. Eblen, Special Judge.
R.A. Dunn for appellants.
Kash C. Williams for appellee.
Affirming.
On the 11th day of October, 1944, the appellee filed an action in ejectment against the appellants alleging that he was the owner of a small tract of land located on the south fork of Quick Sand Creek in Breathitt County, and that appellants were holding possession of said land against his will and without any right.
An answer setting up title by fifteen years adverse possession was denied by a reply, thus making up the issues.
At the trial a verdict was returned by the jury in favor of the appellee and judgment was entered accordingly. The trial was had and the judgment entered on the 16th day of the regular June, 1945, term. Five days thereafter, and on the 21st day of the term, appellants filed motion and grounds for a new trial, which was overruled, An appeal to this court was granted.
On May 15, 1946, appellants filed their bill of exceptions, and on September 19, 1946, appellee filed notice and motion to strike the bill of exceptions from the record. On September 24, 1946, this motion was sustained and the bill of exceptions stricken. See Section 342 of the Civil Code of Practice, Witt v. Lexington E. R. Co., 158 Ky. 401, 165 S.W. 399, and Wilson v. Louisville N. R. Co., 257 Ky. 144, 77 S.W.2d 416.
Under these circumstances the only question presented to this court is whether the pleadings support the judgment.
The petition alleged that appellee is the owner in fee simple and entitled to possession of the land involved, and that appellants are holding possession of that property without right. That the petition stated a cause of action is not open to question. Since it supports the verdict which the jury returned in favor of appellee, the judgment must be and it is affirmed.