
    No. 827
    KING v. VAN PELT, Executor
    No. 19970.
    Supreme Court
    On motion to certify.
    Dock. July 13, 1926;
    4 Abs. 493.
    831. NEGOTIABLE INSTRUMENTS — Where the Common Pleas finds that certain notes in question were returned to the makers thereof as gifts causa mortis may the Court of Appeals reverse the judgment on the ground of error in applying the law to the facts as shown by the undisputed testimony and render judgment against the makers when the same was not prayed for in the petition in error?
    Attorneys — Wilson & Morrow, Hillsboro, ana J. P. PITiiips, ChilHcothe, for K'ng; C. ^sfcwbj-, Hiilrboro, xor Van Pe.t.
   This action was brought originally in the Highland Common Pleas by Bert Van Pelt, executor of the estate ox E. G. Cox, deceased, against Frank L. and Mildred King upon two promissory notes executed by the Kings, E. G. Cox being the payee. The Kings filed an answer in which they alleged that the deceased gave the notes back to Mrs. King just before go.ng to the hospital with the statement "iliese notes aie yours. I give them to you. x may ask you lor them if 1 come back from the hospital”; that the notes were accepted and that Cox died at the hospital.

The Common Pleas held the notes to have been given to Mildred King as a gift causa mortis. This judgment was reversed by Ihe Court of Appeals for error “In applying ihe law to the facts as shown by the undisouied testincnv and judgment was rendered in favor of the executor.”

The Kings in the Supreme Court contend: that the Court of Appeals had no jurisdiction to render judgment in favor of the exeertor when judgment was not requested in the pet.iion in error.  