Brack v. Kleweno

• Decision Date: 08 July 1950
• Docket Number: 37937,37934,Nos. 37890,s. 37890
• Parties: BRACK v. KLEWENO et al. (three cases).
• Court: Kansas Supreme Court

Page 125

220 P.2d 125

169 Kan. 569

BRACK v. KLEWENO et al. (three cases).

Nos. 37890, 37934, 37937.

Supreme Court of Kansas.

July 8, 1950.

Syllabus by the Court.

1. Where a litigant is required, over his objections, to prosecute or defend a cause of action on its merits before issues affecting his substantial rights are joined between the parties, a new trial should be granted.

2. A new trial will be ordered when from an examination of the entire record the court is not satisfied that substantial justice had been accomplished.

Hal C. Davis, to Topeka, W. Kenneth Wilke, of Topeka, and Neil Hotchkiss, of La Crosse, on the briefs, for appellant.

Williams S. Norris, of Salina, F. C. Norton and H. L. Smither, also of Salina, on the briefs, for appellee Walter Kleweno.

WERTZ, Justice.

The three consolidated appeals herein involve only Fred Brack, plaintiff-appellant, Walter Kleweno, defendant-appellee, and Elman Brack, intervenor-appellant. Appeal No. 37,890 was taken by plaintiff Fred Brack as to defendant Kleweno from the judgment of the trial court and from its order overruling and setting aside an order granting plaintiff a new trial. Appeal No. 37,937 was taken by plaintiff as to defendant from subsequent journal entries filed by the trial court after the appeal in No. 37,890 had been filed and perfected by plaintiff. Appeal No. 37,934 was taken by Elman Brack, intervenor, from a judgment of the trial court rendered on September 8, 1949, setting aside its order dated July 7, 1949, granting the parties a new trial and disallowing intervenor's claim to the tenant's share of proceeds from wheat in the receiver's hands. To avoid confusion of parties, we will hereafter refer to appellant Fred Brack as plaintiff, appellant Elman Brack as intervenor, and appellee Walter Kleweno as defendant.

This action, involving a farming partnership accounting, was commenced in June, 1948. The petition alleged that about January 1, 1945, plaintiff and defendant entered into a partnership or joint venture to farm a large acreage of wheat in Ness and Greeley counties; that defendant had not submitted a satisfactory accounting, although demand for the same had been made, and defendant had thretened to harvest the 1948 crop and convert the partnership wheat. The prayer was for appointment of a receiver to take charge of, harvest and sell the wheat; for an accounting of the profits of the partnership, and for a dissolution of the partnership. A receiver was appointed who harvested and sold the wheat and now holds the proceeds from the sale of the 1948 crop subject to court order. On June 24, the court extended the receivership to include an additional 480 acres known as the 'Funk land'. On September 8, defendant filed his answer and cross-petition to which plaintiff filed a motion to make definite and certain. This motion was argued and was by the court on December 8 sustained in part and overruled in part and defendant was granted time to file his amended answer and cross-petition.

On December 13, 1948, one Barrow intervened by leave of court, filed his answer and cross-petition, and a partial hearing was had on his claim on February 9, 1949, before the issues were joined in the case-in-chief between plaintiff and defendant; on objections by appellant, the hearing was continued until February 21 so that the official court reporter could be present, the court stating that he would hear and try all issues between all parties on that date. The transcript of proceedings does not appear to include all that transpired at the hearing. On February 9 and 10, Wheat Growers Mutual Hail Insurance Company and B. F. Scheuerman filed their intervening petitions. The three intervenors last named are no longer in this case as their rights were determined in the case of Brack v. Kleweno, 169 Kan. 93, 216 P.2d 794.

On February 15, 1949, by leave of the court, intervenor Elman Brack filed his amended answer and cross-petition claiming possession of the 480 acre tract (the Funk land) as a tenant of plaintiff, the record title holder, for the 1948 wheat crop.

On February 18, just three days before the date set by the court to try all issues, defendant filed a belated twenty-seven page amended answer and cross-petition, the cross-petition containing three counts. In this amended answer, defendant admitted the partnership with plaintiff for the years 1945 to 1947, inclusive; denied the partnership during the 1947-1948 crop year; alleged that defendant prepared and planted the ground in 1947 at his own expense; and claimed to be sole owner of the 1947-1948 crop harvested by the receiver. The first count of defendant's cross-petition set out at length an accounting covering the crop years 1945 to 1947 and as a result alleged plaintiff was indebted to him in the sum of $41,522.22. In his second count, defendant alleged he was the owner of the 480-acre tract known as the Funk land under an oral agreement with plaintiff that plaintiff was to have record title to the property as security for purchase money advanced and was to reconvey title to defendant when the loan was paid. This count also involved an accounting. The third count of the cross-petition was based on a wrongful receivership and asked that all costs be charged to plaintiff.

On February 21--before the issues were joined between plaintiff and defendant--the intervening petitions of Barrow, Scheuerman, and the Insurance Company were heard over objections of plaintiff. The court also heard the sole issue as to whether a partnership between plaintiff and defendant continued during the 1947-1948 crop year, and found for intervenors, and that the partnership between plaintiff and defendant did continue and exist during the 1947-1948 crop year. From this judgment no appeal was taken. The court then ordered the case-in-chief to trial over plaintiff's objections. Part of plaintiff's two-page objection reads:

'* * * If the Court pleas, on behalf of Fred Brack we hereby object to the trial or hearing for the following reasons:

'In plaintiff's petition filed herein plaintiff alleges a partnership between plaintiff and defendant during 1947 and 1948 crop year, which is denied by the defendant, Walter Kleweno, in his answer. Walter Kleweno filed his answer to plaintiff's petition only a few days ago and plaintiff's attorneys received a copy by mail on Thursday, four days ago. Sec. 60-726 of the Statutes of Kansas provides the plaintiff has ten days after the filing of an answer to file a reply to the answer. At this time that ten days has not expired, and plaintiff now states he does intend to and will file a reply. Sec. 60-2932 of the General Statutes of Kansas provides: 'Actions shall be triable on the issues of fact in ten days after the issues are made up'. We submit * * * the issues are not made up * * *'.

Many other objections were made by plaintiff--that he was unable to go to trial by reason of defendant's long belated cross-petition raising many new issues, and there was much discussion on this question between counsel and the court. Over these urgent objections of plaintiff, the court ordered the trial to proceed on the issues of the accounting between plaintiff and defendant for the crop years 1945-1948, inclusive. Plaintiff then hurriedly filed his reply and answer to defendant's lengthy amended answer and cross-petition. On the same day, at the suggestion of the court, plaintiff and defendant with their counsel entered into a conference and worked until late at night on a stipulation of facts not then reduced to writing and filed in the case. However on the following day, February 25, each party introduced evidence intermingled with extensive stipulations--consisting of 29 pages in the abstract of record--wherein plaintiff and defendant agreed on the credits and debits existing between them by reason of the farming partnership. On February 26th each party rested his case, whereupon the court took the case under advisement. On May 12, 1949, at a new term of court which began March 14, 1949, the court heard the case involving intervenor Elman Brack and took the same under advisement. On May 31, the court drew and filed a journal entry covering court costs in the sum of $350 to the clerk of the court and $360 to his official court reporter.

On June 6, 1949, the court drew and filed a nineteen-page journal entry of judgment on all issues. On June 9, plaintiff filed his motion for new trial setting forth fourteen grounds including abuse of discretion by the court, among them his ordering the case to trial before issues were joined, failure of the official reporter to make a full and complete transcript of all proceedings, and other statutory grounds. In support of plaintiff's motion for a new trial, his counsel filed their affidavits which cover twenty pages in appellant's abstract but are not set out in detail here as it would serve no useful purpose to further encumber this already lengthy opinion. The affidavits call attention to the fact that the court failed to consider all the stipulations entered into between counsel for the parties, and that the court considered an accounting between parties outside the farming partnership which was not in issue in the case. One of the lengthy affidavits set forth several conversations had with the court, outside the court room and in the absence of opposing counsel, on matters material to the case, and discussion with the court reporter as to why she did not report all the proceedings, wherein she said she was working for the court and could only record the remarks she was told to take. Intervenor Brack filed no motion for new trial.

On June 9 defendant filed the following motion: 'Now comes the defendant and moves the court to set aside and vacate Conclusion of Law No. 7 made and entered herein by the court on June 6, 1949, for the reason that the same refers to matters which are not within the issues in this case, and no...