673 P.2d 1197 (Kan.App. 1984), 55565, Livingston v. Estate of Bias

Docket Nº:55565.
Citation:673 P.2d 1197, 9 Kan.App.2d 146
Party Name:Craig Wayne LIVINGSTON, Appellee, v. The ESTATE OF Leonard B. BIAS Through his Personal Representative, Esther Bias, Appellant.
Attorney:[6] Charles L. Davis, Jr. and James G. Keller, of Davis, Unrein, Hummer & McCallister, of Topeka, for the appellant. Ira Dennis Hawver, of Hawver & Irigonegaray, P.A., of Topeka, for the appellee.
Case Date:January 05, 1984
Court:Court of Appeals of Kansas
 
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Page 1197

673 P.2d 1197 (Kan.App. 1984)

9 Kan.App.2d 146

Craig Wayne LIVINGSTON, Appellee,

v.

The ESTATE OF Leonard B. BIAS Through his Personal

Representative, Esther Bias, Appellant.

No. 55565.

Court of Appeals of Kansas

January 5, 1984

Syllabus by the Court

1. Under K.S.A.1982 Supp. 60-241(b ), a dismissal not under section 60-241 and not within one of its exceptions operates as an adjudication upon the merits unless the order for dismissal otherwise specifies.

2. A dismissal under K.S.A. 60-225(a )(1) for failure to substitute parties within a reasonable time after death is suggested on the record is not a dismissal under 60-241 and therefore operates as an adjudication upon the merits unless the order of dismissal otherwise specifies.

Charles L. Davis, Jr. and James G. Keller, of Davis, Unrein, Hummer & McCallister, Topeka, for appellant.

Ira Dennis Hawver, of Hawver & Irigonegaray, P.A., Topeka, for appellee.

Before FOTH, C.J., TERRY L. BULLOCK, District Judge, Assigned, and FREDERICK WOLESLAGEL, District Judge, Retired, Assigned.

FOTH, Chief Judge:

The issue in this case is whether a new suit may be filed when a prior suit on the same cause of action has been dismissed under K.S.A. 60-225(a )(1) for failure to substitute a proper party within a reasonable time after the defendant's death was suggested upon the record. We hold that it may not.

Plaintiff Craig Livingston first filed suit against Leonard Bias on May 25, 1978, for injuries sustained in a 1976 automobile accident. Bias, the defendant in that suit, died

Page 1198

March 2, 1980, a resident of Missouri. A suggestion of death appeared in a pretrial order of June 2, 1980. In September, 1980, plaintiff filed a motion to have the defendant's insurer declared the real party in interest--a motion which the trial court treated as a motion to substitute. That motion, together with a motion to dismiss, was considered in December, 1980. On January 5, 1981, the motion to substitute the insurance company was denied and the case was dismissed for failure to substitute a proper party defendant within a reasonable time. On appeal this court affirmed. Livingston[9 Kan.App.2d 147] v. Bias, 7 Kan.App.2d 287, 640 P.2d 362 (1982) (Livingston I ).

In the meantime plaintiff filed this action on June 12, 1981, naming as defendant the estate of the decedent Bias. Plaintiff also took steps to have the decedent's widow appointed as administratrix in Missouri, and she was served with summons. She filed a motion to dismiss which was overruled. Plaintiff eventually recovered a judgment for $12,250, and the estate brings...

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