Anderson v. Biscoe
| Decision Date | 07 April 1947 |
| Docket Number | 20878 |
| Parties | ANDERSON v. BISCOE |
| Court | Kansas Court of Appeals |
I. B Smith, Thomas M. Brandom and Thos. C. Swanson, all of Kansas City, for appellant.
David R. Clevenger, of Platte City, and Walter A. Raymond, of Kansas City, for respondent.
This is an appeal from a judgment sustaining defendant's motion to dismiss the action.
The petition is entitled 'In Equity'. It alleges that defendant is the administratrix of the estate of Jessie F Patton, deceased; that deceased during his lifetime orally 'employed plaintiff to work for and perform farm labor and chores and the growing of crops, and had the personal care, cooking for, keeping house for, and serving meals to and otherwise caring both for said decedent's personal requirements; that decedent was in ill health for a protracted period prior to his death'; that under said oral agreement there was owing plaintiff the sum of $ 514 that it was also orally agreed that 'plaintiff should have an interest in a tobacco crop, which was, and is of the reasonable value of $ 180; that a further consideration for said agreement was that plaintiff have the possession of and use of said farm then belonging to decedent in Platte County so long as plaintiff lived'.
The petition further alleges that the farm had been conveyed to persons unknown to plaintiff; that the administratrix has in her hands $ 8,500 being the proceeds of the sale of the farm. The petition prays that the court decree that this sum 'or such part thereof as may appear equitable and just, be set aside and paid over to plaintiff as alternative relief under his right to a decree of specific performance, requiring delivery and possession of said farm to plaintiff for his use during his lifetime'.
To the petition defendant filed a motion to dismiss. The grounds assigned in the motion were two. (1) Because there is another suit involving the same issues pending in the Circuit Court of Platte County. (2) Because the cause of action was not filed within one year after the granting of letters of administration and, therefore, 'not timely filed'.
The judgment recites: The Court 'after due consideration of the defendant's motion herein, and being now sufficiently advised in the premises, sustains defendant's motion to dismiss.
'Therefore, it is considered and adjudged by the court that the petition and suit of the plaintiff be hereby dismissed, and that the defendant go hence without day, and recover of the plaintiff her costs and charges in this behalf expended and incurred, and have thereof execution'.
Plaintiff insists that the court erred in sustaining defendant's motion to dismiss, for the reason that the five year statute of limitations applies and not the one year statute; that the suit was not required to be filed within one year after the appointment of the administratrix.
Under the provisions of section 182, R.S.Mo. 1939, Mo.R.S.A., demands must be exhibited within one year from the date of the granting of letters, provided the letters are published within 10 days. The requirement that the demand shall be exhibited within one year, in no wise, effects the general statute of limitations. Hinshaw v. Warren, 167 Mo.App. 365, 371, 372, 151 S.W. 497; State ex rel. v. Browning, 102 Mo.App. 455, 457, 76 S.W. 719. The motion does not set up that no demand was exhibited within one year; merely that the cause of action was not filed within that time.
However, the trial court sustained the motion generally and if there is any meritorious ground set up in the motion to justify its sustention the judgment must be affirmed. There is no contention made by the plaintiff that the allegation in the motion in reference...
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