
    Shepherd et al. v. Eagle Coal Co.
    (Decided Nov. 24, 1933.)
    J. E. STEPHENS and L. G. CAMPBELL for appellants.
    E. L. STEPHENS for appellee.
   Opinion of the Court by

Judge Dietzman

Affirming.

This was an action of ejectment brought by the appellee against the appellant, whose plea was a traverse coupled with a claim of title by adverse possession. The lower court without the intervention of a jury found for the appellee and this appeal results.

The sole ground urged for reversal is that the appellant was entitled to a judgment on the face of the pleadings because his plea of adverse possession had not been put in issue by any pleading on behalf of the appellee. However, the parties and their counsel in the trial of this case treated the affirmative allegations in appellant’s answer as controverted and the case was tried as though the claim of adverse possession was in issue. The point that the plea of adverse possession had not been properly controverted is raised for the first time in this court. It comes too late. As said in the case of Fyffe v. Skaggs, 246 Ky. 5, 54 S. W. (2d) 369, 372:

“The answer of Fyffe presenting his defense was not controverted of record nor by a reply. For this reason he argues that he was entitled to judgment on the pleadings. The court, the parties, and their counsel treated the affirmative allegations in his answer as controverted. After a trial on the evidence as if the answer was properly controverted, he cannot be heard in this court to contend that the facts were not put in issue because no reply was filed to his answer [Marshall v. Craig, 1 Bibb, 379, 383 (4 Am. Dec. 647); L. & N. R. Co. v. Tuggle’s Adm’r, 151 Ky. 409, 152 S. W. 270], or that the judgment was not authorized by the pleadings. ’ ’

This case is conclusive of the contention here made, from which it results' that the judgment must be and it is hereby affirmed. •  