
    CITY OF WHITESBURG, Kentucky, Appellant, v. Jesse BATES et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 23, 1959.
    LeRoy W. Fields, Whitesburg, for appellant.
    Harry M. Caudill, Whitesburg, for appel-lee.
   PER CURIAM.

The City of Whitesburg has moved for an appeal from a judgment awarding ap-pellees Jesse and Della Bates the sum of $1,000 on their claim for rent due on a tract of land which the city allegedly leased to use as a parking lot. A number of legal and constitutional issues are raised on this appeal which were not properly presented to the trial court.

On motion for summary judgment the city attempted to raise the issue of the statute of frauds. This defense should have been raised by answer. CR 8.03. Even if properly presented by motion, the issue became moot when appellees relinquished their claim to more than seven months’ rent.

On a motion to dismiss, filed the day of trial, the city attempted to raise the defense of illegality of the contract under Sections 157 and 162 of the Kentucky Constitution. This was likewise an affirmative defense which should have been specially pleaded under CR 8.03. Even if the motion could be considered as a pleading, it did not state sufficient facts to constitute a defense on this ground.

The trial court properly denied appellant’s motions, and the judgment was based on .a jury verdict amply supported by the evidence in the case.

The motion for appeal is denied and the judgment stands affirmed.  