Armstrong v. Lough

• Decision Date: 04 May 1929
• Docket Number: 28,468
• Citation: 277 P. 51,128 Kan. 167
• Parties: R. D. ARMSTRONG, Appellant, v. J. W. LOUGH et al., Defendants; W. D. LOUGH, GEORGE L. WEISHAAR, ROY F. DENG, G. W. LIGGETT, J. L. SHARPE et al., Appellees
• Court: Kansas Supreme Court

277 P. 51

128 Kan. 167

R. D. ARMSTRONG, Appellant, v. J. W. LOUGH et al., Defendants;

W. D. LOUGH, GEORGE L. WEISHAAR, ROY F. DENG, G. W. LIGGETT, J. L. SHARPE et al., Appellees

No. 28,468

Supreme Court of Kansas

May 4, 1929

Decided January, 1929.

Appeal from Scott district court; HARRY E. WALTER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. APPEAL AND ERROR--Record--Conclusiveness Where Counsel Disagree. Where a dispute between counsel arises in the supreme court concerning what transpired in the district court, the record which the parties submit to this court is relied on to settle it, and volunteer statements of counsel unsupported by the record are of no significance.

2. PLEADING--Departure--What Constitutes. In an action to recover an amount due for services, plaintiff's first petition pleaded the original indebtedness and an account stated pertaining thereto. Plaintiff's fourth and last amended petition pleaded substantially the same facts in alternative counts, one on the general indebtedness and one on the account stated, but prayed for only one recovery. Held, that the last amended petition was not a substantial departure from the cause of action originally pleaded, nor from that set up in the several intermediate petitions, and the original cause of action was sufficiently pleaded in such fourth amended petition against defendants' dilatory motions lodged against it.

C. E Vance, of Garden City, for the appellant; R. D. Armstrong, of Scott City, pro se.

A. S. Foulks, of Topeka, Ed R. Bane and Leo T. Gibens, both of Scott City, for the appellees.

Dawson J. Hutchison, J., not sitting.

OPINION

DAWSON, J.:

The question in this appeal is the sufficiency of an oft-amended petition which succumbed before defendants' motions to strike and the order of court dismissing the action with prejudice.

The action was begun on December 17, 1925, when plaintiff filed his first petition, in which he set up a claim for $ 3,335.29 for services as attorney for a partnership comprised of defendants, which professional services covered a period of several years up to June 30, 1923. He also alleged that on January 31, 1925, his stated account for these services had been accepted on behalf of defendants by one of their number, J. W. Lough.

This petition was subjected to a motion to make more definite and certain, and without awaiting a ruling thereon plaintiff, on February 3, 1926, with leave of court filed an amended petition setting up the facts alleged in his first petition and adding an allegation touching a contract of dissolution of the defendant partners, dated June 20, 1923, whereby J. W. Lough undertook to conduct the partnership business until it could be wound up and its debts paid. To that first amended petition defendants filed a demurrer, which was not ruled on, and on August 13, 1926, by leave of court, plaintiff filed a second amended petition in which he again pleaded his employment as attorney for defendants and his services thereunder from January 1, 1921, to June 20, 1923, and set up his claim for compensation therefor. To this second amended petition plaintiff attached an itemized statement of account which roughly approximated the amount prayed for in this and the two preceding petitions. This petition, however, did not mention the account stated which had been pleaded in both prior petitions.

To this second amended petition separate demurrers were lodged by two groups of defendants, the grounds therefor being that it did not state a cause of action, and showed on its face that plaintiff's claim was barred by the statute of limitations.

Again, without awaiting a formal ruling on these demurrers, on November 13, 1926, plaintiff filed a third amended petition which differed in no substantial particular from the facts pleaded in the original petition and in the first amended petition. It narrated plaintiff's employment and services as attorney for defendants up to June 20, 1923, the statement and acceptance of his account by J. W. Lough on behalf of defendants on January 31, 1925, and pleaded the contract between the defendant partners which pertained to the winding up of the business and the payment of its debts by J. W. Lough as liquidating partner.

This third amended petition was subjected to separate motions to strike on various grounds--that it was frivolous, a mere repetition of the first amended petition already "held defective on demurrer," and a departure from the first and all succeeding petitions filed prior to June 20, 1926.

These motions were sustained on April 4, 1927, but leave was given plaintiff to file instanter his fourth amended petition, which once more alleged the facts of plaintiff's employment and services as attorney prior to and down to June 20, 1923, and defendants' indebtedness to plaintiff thereunder as shown by an itemized account attached to the petition. In this petition a second count was formulated purporting to be founded on the same claim for attorney's services, and which set up the contract of the defendant partners whereby J. W. Lough was to serve as liquidating partner, and pleading the statement and acceptance of plaintiff's account by J. W. Lough on defendants' behalf.

To this fourth amended petition some of the defendants filed a motion to strike on the ground of departure. Others filed a motion pleading departure, repetition of earlier pleadings abandoned by plaintiff, and repetition of the first amended petition "held bad on demurrer."

The trial court sustained these motions, dismissed the action with prejudice and entered final judgment accordingly. Hence this appeal.

Before considering the propriety of the judgment on its merits it is needful to settle a dispute which has arisen in this court between counsel touching the disposition in the trial court of defendants' demurrer to plaintiff's first amended petition. According to plaintiff's abstract that demurrer was not passed on, and plaintiff was permitted either expressly or without objection to file a second amended petition. In that situation, it serves no purpose for counsel for defendants to volunteer a statement to the contrary. It was their duty to supplement the abstract with something of record, even if that had to be provided by court order nunc pro tunc, to show that the trial court had sustained the demurrer to the first amended petition. (Rules of the Supreme Court, No. 5; Platts v. Thompson, 126 Kan. 544, 549, 268 P. 833, and citations.) Failing that, this court must accept the record submitted by plaintiff as correct. However, this matter is of little consequence unless there was a substantial departure between the first and last petitions filed herein which might be affected by the statute of limitations or by the time allowable for appellate review.

What about this question of departure? The proper answer will be discovered by a careful examination of the nature of plaintiff's claim. Against a plea of departure or variance under our liberal civil code the precaution of prime importance in the amending of pleadings is that the cause of action or defense be not materially changed. (R. S. 60-759; Bogle v. Gordon, 39 Kan. 31, 17 P. 857; Culp v. Steere, 47 Kan. 746, 750, 751, 28 P. 987; Grand Lodge v. Troutman, 73 Kan. 35, 37, 84 P. 567; Kibby v. Hensel, 81 Kan. 229, 231, 105 P. 696; Taylor v. Railway Co., 81 Kan. 232, 68 P. 691.) In the original petition plaintiff's claim was one for services...