American Glycerin Co. v. Freeburne

• Citation: 157 Kan. 22,138 P.2d 468
• Decision Date: 12 June 1943
• Docket Number: 35714.
• Parties: AMERICAN GLYCERIN CO. v. FREE BURNE et al.
• Court: Kansas Supreme Court

138 P.2d 468

157 Kan. 22

AMERICAN GLYCERIN CO. v. FREE BURNE et al.

No. 35714.

Supreme Court of Kansas

June 12, 1943

Syllabus by the Court.

In order to render a petition demurrable on the ground that the action is barred, such fact must affirmatively appear on the face of the petition. Gen.St. 1935, 60-705, 60-707.

Where a petition states a cause of action, and the defendant relies upon the fact that a valid service of summons was not had until after statute of limitations has run, such defense must be raised by answer and not by a demurrer to the petition. Gen.St.1935, 60-705, 60-707.

The courts cannot ignore the legislative intent when clearly expressed.

The courts cannot arbitrarily read an exception into the statute and say that, whenever a demurrer raises the question whether an action is barred, courts may go outside the petition search the files, and determine whatever preliminary legal questions it is necessary to determine in order to ascertain whether an action as to certain defendants was commenced in time. Gen. St.1935, 60-705, 60-707.

Reasons which prompt legislation are within the province of the lawmakers.

When the intent and purpose of a law is clear, the statute is a sufficient reason for requiring compliance with its provisions.

Where petition in action for price of supplies and equipment for an oil and gas lease stated a cause of action on its face, any facts constituting a bar of the action by reason of limitation must be set up in the answer. Gen.St.1935, 60-306 Second, 60-705, 60-707.

Where petition in action for price of supplies and equipment for an oil and gas lease stated a cause of action, on demurrer raising statute of limitations, trial court erroneously examined files and considered facts disclosed thereby including times when process was served on different parties to the action in order to determine whether action was barred by limitations. Gen.St.1935, 60-306, Second, 60-308, 60-705 60-707.

Where trial court erred in going beyond face of petition to determine whether action was barred by limitation, on appeal the Supreme Court could only so hold without determining whether action was in fact barred. Gen.St.1935, 60-306, Second, 60-308, 60-705, 60-707.

1. A defendant may demur to a petition only where some one of the defects enumerated in G.S.1935, 60-705, appears on the face of the petition and where such a defect does not so appear the objection to the petition may be taken by answer. G.S.1935, 60-707.

2. Before a demurrer to a petition can be sustained upon the ground the action is barred by the statute of limitations, the facts constituting the bar must appear on the face of the petition and cannot be supplied from the files in the case or other records which disclose the date on which summons was served on the defendants.

Appeal from District Court, Butler County, Division No. 2; George J. Benson, Judge.

Action by American Glycerin Company against C. S. Freeburne and others to recover purchase price of supplies and equipment for an oil and gas lease. From an order sustaining the demurrer of Wallace Siebert and Oscar Siebert, doing business as Siebert Brothers, to petition, the plaintiff appeals.

Reversed.

W. H. Coutts, Jr., of El Dorado, for appellant.

L. J. Bond, of El Dorado, and David W. Wheeler, Jr., of Marion, for appellees.

WEDELL Justice.

This was an action to recover from a number of defendants the purchase price of supplies and equipment for an oil and gas lease. Two defendants, Wallace Siebert and Oscar Siebert, doing business as Siebert Bros., demurred to the petition upon the ground it disclosed upon its face no cause of action was stated against them, or either of them, for the reason the action was barred by the statute of limitations. The demurrer was sustained and the action was dismissed as against those defendants. From that ruling plaintiff appeals.

The action was filed in the district court of Butler county November 19, 1937. The petition, insofar as material, in substance alleged:

C. R. Nuttle was the owner of the fee title to the land; C. S. Freeburne, C. R. Nuttle, J. M. Devereux, Wallace Siebert and Oscar Siebert, doing business as Siebert Bros., were the owners of the leasehold estate and the materials and equipment were furnished June 18, 1935, at the instance and request of all defendants except C. R. Nuttle; all the defendants were residents of Butler county; plaintiff demanded payment of the account, which was refused (a copy of the mechanic's lien statement was attached to and made a part of the petition).

Appellant prayed for personal judgment against each and all of the defendants. Appellant admits it did not foreclose its lien in time and that the only remaining purpose of the action was to obtain a personal judgment against defendants. It is, of course, conceded an action on an oral contract is not barred until three years after the cause of action accrues. G.S.1935, 60-306, Second.

Was the demurrer properly sustained? The face of the petition did not disclose the action was barred. The particular defendants who purchased the materials for their oil and gas lease were united in interest. G.S.1935, 60-308, provides: "An action shall be deemed commenced within the meaning of this article, as to each defendant, at the date of the summons which is served on him, or on a codefendant who is a joint contractor, or otherwise united in interest with him."

In order to ascertain when the action was actually commenced against appellees, the trial court examined the files in the case and considered such facts disclosed thereby as it believed necessary in order to determine whether the action against appellees was barred. The files disclosed the following facts:

A summons was issued November 19, 1937, and served on C. R Nuttle on November 26, 1937, in Butler county; December 4, 1937, C. R. Nuttle demurred to plaintiff's petition on the ground the petition stated no cause of action against him; the demurrer was sustained January 3, 1938, and no further pleading was filed by appellant with respect to C. R. Nuttle and no appeal was taken from that ruling; March 2, 1938, a summons was issued to the sheriff of Lyon county which was served on C. S. Freeburne March 4, 1938; a summons was issued November 10, 1939, to the sheriff of Montgomery county and was served on J. M. Devereux November 13, 1939; a summons was issued January 5, 1940, to the sheriff of Marion county, and on January 8, 1940, it was served on Wallace Siebert and Oscar Siebert; February 1, 1940, Wallace Siebert and Oscar Siebert made a special appearance to quash that service for the reason the court was without jurisdiction as to them; before the court ruled upon their motion and on May 2, 1940, appellant caused an alias summons for appellees to be issued to the sheriff of Marion county; April 23, 1940,...