Birch v. The Solomon National Bank

• Decision Date: 12 June 1926
• Docket Number: 26,838
• Citation: 246 P. 688,121 Kan. 333
• Parties: CLARA T. BIRCH, Appellee, v. THE SOLOMON NATIONAL BANK, Appellant
• Court: Kansas Supreme Court

246 P. 688

121 Kan. 333

CLARA T. BIRCH, Appellee, v. THE SOLOMON NATIONAL BANK, Appellant

No. 26,838

Supreme Court of Kansas

June 12, 1926

Decided January, 1926.

Appeal from Mitchell district court; WILLIAM R. MITCHELL, judge.

Decision reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. APPEAL AND ERROR--Decisions Reviewable--Motion to Strike Out. A ruling denying a motion to make a pleading more definite and certain is ordinarily not a final order, and cannot be reviewed on appeal until after final judgment.

2. HOMESTEADS--Rights of Adult Children--Judicial Sale. The averments of a petition asking that plaintiff's title to land claimed as a homestead be quieted, examined, and held following the ruling in Solomon Nat'l Bank v. Birch, post, p. 334, the facts alleged did not state a cause of action.

David Ritchie and Omer D. Smith, both of Salina, for the appellant.

Ira N. Tice and William Tice, both of Beloit, for the appellee.

OPINION

JOHNSTON, C. J.:

Clara T. Birch brought this action to quiet her title to a tract of land against the claims of the Solomon National Bank. In her petition she alleged that she was the widow of William Birch, who had been the owner of the land and had occupied the same as his homestead; that upon his death she and her children inherited the land; that she had purchased the shares of her sons, Lester Birch and Dallas U. Birch; that the premises had been occupied by her and her sons as a homestead; that the defendant had procured judgment against her sons on which an execution had been issued and levied upon the shares inherited by them; that a sale had been made and the bank was seeking to procure the execution of a deed to the premises and then to obtain partition of the same which would operate as a cloud upon her title. In a second cause of action plaintiff recounted the facts stated in the first, and added that the defendant, well knowing that the land was not subject to levy and sale under its judgment, had maliciously caused execution to be levied on the land for the purpose of annoying her and of injuring her title, for which she asked damages in the sum of $ 1,150, and also a judgment quieting her title as against its claim.

A motion was made by defendant to make the petition of plaintiff more definite and certain in some particulars and defendant also filed a demurrer to the second cause of action. The motion to make more definite and certain was...