
    Commonwealth, et al. v. First Christian Church of Louisville. Same v. Starks.
    (Decided June 16, 1916.)
    Appeals from Jefferson Circuit Court (Chancery Branch, Second Division).
    ROWAN HARDIN for appellants.
    HELM BRUCE, I-I. 'L. STONE, HENRY M. JOHNSON and M. S. BARKER for appellees.
   Opinion of the Court by

Judge Hurt

Overruling petition for rehearing and modifying opinion. Por opinion see 169 Ky. 410.

The petition for rehearing calls attention to the fact, that the proceeding by the Commonwealth against the appellee, John P. Starks, was an appeal from a judgment by which a demurrer was sustained to the petition of appellant, and expresses a fear that under the terms of the opinion, npon the return of the case to the court, below, the appellee would be precluded from filing an answer and offering any valid defense, that he may have, based npon the facts of the controversy. This court did not overlook the fact, that the question before it was simply whether' or not the petition stated a cause of action. The opinion was written, bearing in mind, the elementary rule, that for the purposes of the demurrer the truth of the allegations of the petition was admitted, and the conclusions of the opinion are based upon that presumption, as in any other case. The opinion expressly holds, simply, that' the demurrer should have been overruled. It was in nowise intended to make a final adjudication of the case or to preclude any valid defense, based upon the facts of the controversy. The petition for rehearing is therefore overruled, and if any expressions in the opinion are susceptible of the construction, that the appellee is precluded from offering an answer and presenting any valid defense,, based upon the facts of the controversy, the opinion is modified to the extent herein stated.  