Axe v. Wilson

• Citation: 150 Kan. 794,96 P.2d 880
• Decision Date: 09 December 1939
• Docket Number: 34339,34423.,34422
• Parties: AXE v. WILSON (three cases)
• Court: Kansas Supreme Court

96 P.2d 880

150 Kan. 794

AXE v. WILSON (three cases)

Nos. 34422, 34339, 34423.

Supreme Court of Kansas

December 9, 1939

Rehearing Denied Feb. 6, 1940.

Syllabus by the Court.

In suit to set aside a deed, demurrer to defendant's cross-petition on ground that it did not directly allege that defendant was in possession of the realty in question, by person or by tenant, was properly overruled, where, in view of the issues joined by all the pleadings, trial court had full power to determine not only question of title but also the right to possession. Gen.St.1935, 60-1801.

Motions to strike and to make definite and certain rest in the trial court's sound discretion.

The trial court's rulings on motions to strike and to make definite and certain are not appealable, unless they affect a substancial right and in effect determine the action.

Where motions to strike and to make definite and certain were leveled only against the original petition, which was superseded by an amended petition on which the action was pending, the correctness of the rulings was not appealable.

An action is not deemed commenced until the summons is served on the defendant. Gen.St.1935, 60-308.

Defendant's motion to abate and to dismiss action to contest will and codicil on ground that it was filed subsequent to an action to recover damages resulting from the alleged fraudulent procurement of the will and codicil, was properly overruled where the petitions were deposited with the clerk for filing at exactly the same time, and the Supreme Court could not determine from the record which summons was served first. Gen.St.1935, 60-308.

Trial court properly overruled defendant's motion to abate and dismiss action to contest will on ground that plaintiff should be required to elect whether she would stand on action for damages for alleged malicious interference with her right of inheritance, or would stand on action to contest will since in order to compel an election, two inconsistent remedies must actually be open to the party asserting them.

In action to contest will, petition alleging that testator was not possessed of sound mind and disposing memory and was so insane, dominated, and controlled by defendant as to be incapable of understanding the natural objects of his bounty and was unable to resist the defendant, was not demurrable.

Where particular relief sought by plaintiff, in action for damages for malicious interference with plaintiff's alleged right of inheritance, was obtainable in another action, if successful, which was then pending to contest will, and no other damages whatsoever were claimed, and the action for damages for malicious interference would, if successful, in effect nullify the apparent intent of the will and render nugatory the apparent rights of defendant under the will plaintiff's remedy lay in action to contest will.

Action to recover damages resulting from the alleged fraudulent procurement of a deed from plaintiff's father was barred by two-year limitations, whether it be regarded as an action to recover for injuries to plaintiff's rights or as an action for relief on specific ground of fraud, where deed was executed in 1930 and was recorded in 1934, and the action was not commenced until 1938. Gen.St.1935, 60-306, subd. 3.

1. The pleadings in case No. 34,422, consisting of an amended petition to set aside a deed and an answer and cross petition to quiet title in defendant to the property described in the deed, examined and held: The demurrer to defendant's cross petition on the ground it did not directly allege she was in possession of the property in person or by tenant, was properly overruled where in view of the issues joined by all the pleadings the court had full power to determine not only the question of title but also the right to possession.

2. The record in case No. 34,339, being an action to contest a will, examined and held: (1) Motions to strike and to make definite and certain rest in the sound discretion of the trial court and rulings thereon are not appealable, unless they affect a substantial right and in effect determine the action; (2) the motions described in (1) were leveled only against the original petition which has been superseded by an amended petition on which the action is now pending and the correctness of the rulings is not appealable; (3) defendant's motion to abate and dismiss the action to contest the will and codicil on the ground that action was filed subsequent to an action to recover damages resulting from the alleged fraudulent procurement of the will and codicil, was properly overruled in view of the facts narrated in the opinion; (4) the motion of defendant to require plaintiff to elect in the instant action whether she would stand on this action or on the damage action was properly overruled. In order to compel an election two inconsistent remedies must actually be open to the party asserting them. (5) The demurrer to plaintiff's amended petition was properly overruled.

3. The record in case No. 34,423, being an action to recover damages for malicious interference with plaintiff's alleged right of inheritance, examined and held: (1) In view of the fact that the particular relief sought by plaintiff, under the express averments of the amended petition, could and would be obtained in a successful action then pending to contest the will, and that no other damages whatsoever were claimed, and in view of the further fact that this particular action, if successful, would in effect nullify the apparent intent of the will and render nugatory the apparent rights of the defendant under the will, plaintiff's remedy lies in her action to contest the will and not in an independent action for damages alleged to have been suffered by the fraudulent and malicious procurement of the will; (2) the demurrer to the amended petition was properly sustained.

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Appeals from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.

Action by Ruth Elizabeth Axe against Bertha Wilson, also known as Bertha V. Wilson, to set aside a deed transferring various tracts of realty to the defendants, wherein the defendants filed a cross-petition seeking to quiet title to the realty. Action by Ruth Elizabeth Axe against Bertha Wilson, also known as Bertha V. Wilson, and Bertha Wilson as executrix of the last will and testament of G. A. Wilson, deceased, to contest the will of G. A. Wilson, deceased. Action by Ruth Elizabeth Axe against Bertha Wilson, also known as Bertha V. Wilson, to recover damages from the defendants for malicious interference with plaintiff's alleged right of inheritance.

From adverse judgments in the first and third cases the plaintiff appeals, and from an adverse judgment in the second case, defendant appeals.

Judgments affirmed.

In Nos. 34422, 34423:

Paul H. White, Robert C. Foulston, George Siefkin, Sidney L. Foulston, Lester L. Morris, George B. Powers, Carl T. Smith, C. H. Morris, and John F. Eberhardt, all of Wichita, for appellant.

Henry Lampl, Maurice Lampl, Rupert Teall, and Austin M. Cowan, all of Wichita, for appellee.

In No. 34339:

Henry Lampl, Maurice Lampl, Rupert Teall, and Austin M. Cowan, all of Wichita, for appellant.

Robert C. Foulston, George Siefkin, Sidney L. Foulston, Lester L. Morris, George B. Powers, Carl T. Smith, C. H. Morris, and John F. Eberhardt, all of Wichita, for appellee.

WEDELL Justice.

Three actions are consolidated in this appeal. None of the actions has been tried. The appeals are from various rulings on motions and demurrers. Petitions in all three actions were deposited with the clerk of the district court of Sedgwick county, for filing on the same day and at the same time. The rulings were not all made by the same trial judge as the actions were assigned to two divisions of that court as authorized by G.S.1935, 20-602.

Plaintiff is the only daughter of G. A. Wilson and Josephine Tanton Wilson. Both of her parents are now deceased. The mother died first and the father, within three years, married his nurse and housekeeper, who is the defendant Bertha Wilson, also known as Bertha V. Wilson. No children were born during her father's second marriage. The stepmother, Bertha Wilson, is the only defendant in two of these actions. Those actions are number 34,422, which is an action to set aside a deed transferring various tracts of real estate from the father to the stepmother, Bertha Wilson, and case number 34,423, which is an action for damages against the stepmother for malicious interference with plaintiff's alleged right of inheritance. Case number 34,339, is an action to contest the will of plaintiff's father and was instituted against both Bertha Wilson, and Bertha V. Wilson, executrix of the estate of G. A. Wilson, deceased.

In case number 34,422, which is the action to set aside the deed plaintiff is the appellant. The appeal is from the order overruling plaintiff's demurrer to defendant's cross-petition. By the cross-petition defendant sought to quiet her title to the lands described in the deed, which is the deed plaintiff sought to set aside. The alleged defect in the cross-petition, upon which the demurrer was grounded, was the absence of an allegation that defendant was in possession of the lands, in person or by tenant, as required in an ordinary quiet title action under provisions of G.S. 1935, 60-1801. That, in an ordinary action to quiet title, an allegation of plaintiff's possession in person or by tenant is necessary under the statute and decisions, is conceded. Defendant first contends the cross-petition, when fairly interpreted, contains the necessary allegation. It did not contain the direct...