Burris v. Burris

• Citation: 140 Kan. 208,34 P.2d 127
• Decision Date: 07 July 1934
• Docket Number: 32045.
• Parties: BURRIS v. BURRIS et al. [*]
• Court: Kansas Supreme Court

34 P.2d 127

140 Kan. 208

BURRIS v. BURRIS et al. ^[*]

No. 32045.

Supreme Court of Kansas

July 7, 1934

Syllabus by the Court.

Generally demurrer opens whole record so that judgment may be rendered against first party whose pleadings are defective.

Action for accounting of partnership between duly qualified surviving partner and executrix of deceased partner's estate held within district court's jurisdiction.

Where partnership is terminated by partner's death and surviving partner qualifies to administer partnership estate final settlement between estate of deceased partner and surviving partner cannot be had until partnership assets have been sold, credits collected, and debts paid, and action for accounting instituted within three years from time assets are sold, credits collected, and debts paid is not barred by limitations (Rev. St. 1923, 22--401 to 22--405).

Where partnership is terminated by partner's death and surviving partner qualifies to administer partnership estate final settlement between deceased partner's estate and surviving partner cannot be had until partnership assets have been sold, credits collected, and debts paid, and action for accounting will lie to bring about such result.

Statutes of nonclaim do not apply to partnership estates and do not bar an action for accounting where partnership is terminated by death of partner (Rev. St. Supp. 1933, 22--701, 22--702 22--727, 22--732).

Sustaining demurrer to petition for want of material allegation does not prevent subsequent judgment in same cause or maintenance of new action on same cause of action where material allegation is supplied.

Sustaining of demurrer to surviving partner's petition for accounting for want of allegation that partner had qualified to administer partnership estate held not to bar maintenance of new action, where petition therein contained such allegation (Rev. St. 1923, 22--402).

1. The general rule is that a demurrer opens the whole record so that a judgment must be rendered against the first party whose pleadings are defective.

2. The district court has jurisdiction of an action for an accounting of a partnership between the duly qualified surviving partner and the executrix of the estate of the deceased partner.

3. Where a business partnership is terminated by the death of one of the partners, and thereafter the surviving partner, who later qualified by giving bond as required by statute, proceeds to administer the partnership estate, a final settlement between the estate of the deceased partner and the surviving partner cannot be had until the partnership assets have been sold, the credits collected, and the debts paid, and to bring about such result an action for an accounting will lie which action will not, within three years from the time such assets are sold, credits collected, and debts paid, be barred by the statute of limitations.

4. The provisions of the nonclaim statutes (Rev. St. Supp. 1933, 22--701, 22--702, 22--727, 22--732) do not apply to partnership estates, and do not bar an action for an accounting.

5. Where a demurrer is sustained to a petition for want of a material allegation, it will not prevent a subsequent judgment in the same cause or the maintenance of a new suit on the same cause of action; the material amendment being supplied either in an amended petition or in a newly filed petition.

Appeal from District Court, Neosho County; J. T. Cooper, Judge.

Action by Frank B. Burris, sole surviving partner of Burris Brothers, against Lora S. Burris, individually and as executrix of the estate of E. P. Burris, deceased. From an adverse judgment, defendant appeals.

James A. Allen, B. M. Dunham, and John J. Jones, all of Chanute, and F. J. Leasure, of El Dorado, for appellants.

T. R. Evans and Hugo T. Wedell, both of Chanute, for appellee.

THIELE Justice.

This was an action for a partnership accounting brought by a surviving partner. Substantially the same relief was sought in Burris v. Burris, 137 Kan. 831, 22 P.2d 976, in which plaintiff failed on account of his not having duly qualified as such surviving partner. The petition in that case was filed March 24, 1932, and after the above decision was handed down and on July 19, 1933, that case was dismissed without prejudice in the lower court, and within a year thereafter and on November 6, 1933, the present action was filed.

The amended petition alleges that Lora S. Burris is the sole heir at law and the sole legatee and devisee of E. P. Burris, who died testate on April 3, 1930, and on April 14, 1930, she was duly appointed and qualified as executrix of his estate. There is appropriate allegation of the partnership under oral agreement, its termination by death of the deceased testator, the qualification of the surviving partner, although the date of qualification is not alleged, and that the assets of the partnership are ample to pay the liabilities of the partnership and of the members thereof. It is then alleged that the deceased member, E. P. Burris, during the continuance of the partnership collected large sums of money which were partnership assets which he failed to cover into the partnership, the exact amount of which plaintiff could not state, and that the deceased E. P. Burris and his successor in interest, Lora S. Burris, had the benefits, and that it was necessary an accounting be had to the end that partnership matters be settled, the debts of the firm paid, and the accounts adjusted as between the members and successors in interest, and that there had never been any accounting between the partners touching the partnership.

Lora S. Burris, individually and also as executrix, filed separate but identical answers, in which she admitted the death of E. P. Burris, testate, that she was sole legatee and devisee, and her appointment and qualification as executrix. In the second paragraphs of the answers, defendants alleged the court had no jurisdiction of the subject of the action; in the third paragraphs the proceedings in the first action were fully set out and on account thereof it was alleged that all matters and things set forth in the amended petition had been fully and finally adjudicated; in the fourth paragraphs that the amended petition shows on its face that if any cause of action is stated it is barred by the statute of limitations; in the fifth paragraphs that the amended petition does not state facts sufficient to constitute a cause of action, and that if any cause of action is stated it is barred and cannot be maintained by reason of Rev. St. Supp. 1933, 22--701, 22--702, 22--727, 22--732 and Rev. St. 60-- 306, par. 2; and in the sixth paragraphs that she never had in her possession or under her control any partnership assets, and that if there is any such it is in the possession and control of the plaintiff. The seventh paragraphs of the answers are general denials which include a denial that there was a partnership. To these answers plaintiff filed replies, which, while not identical, contain a denial of averments inconsistent with the amended petition and a demurrer to the second, third, fourth, fifth, and sixth paragraphs of defendants' answers. These demurrers were sustained as to all paragraphs noted except No. 6.

From these rulings the defendants appeal; the specifications of error being that the court erred in not carrying the demurrers back to plaintiff's petition and sustaining them as to that petition, and in sustaining the separate demurrers to the two answers of the defendants. It has been observed that the second paragraphs of the answers are in substance demurrers that the court has no jurisdiction of the subject of the action, the fourth paragraphs are in substance demurrers on the ground that the petition shows on its face that the action is barred, and the fifth paragraph of both answers is a demurrer to the plaintiff's amended petition on the ground that it fails to state facts sufficient to constitute a cause of action, or if one is stated that it is barred by the statutes of nonclaim specifically referred to and the general statute of limitations. The plaintiff's reply demurred to these particular paragraphs.

For convenience, the parties to this appeal will be referred to as plaintiff and defendant. Plaintiff objects to a consideration of the demurrer as searching the whole record for the reason that it was not so presented to the trial court. The general rule is that a demurrer opens the whole record so that judgment must be rendered against the first party whose pleadings are defective. Rohrbaugh v. Cunningham, 101 Kan. 284, 287, 166 P. 471; 49 C. J. 443; 21 R. C. L. 530. As both sets of demurrers touch the question of the court's jurisdiction, whether the petition states a cause of action and, if so, whether that cause is barred either by the general statute of limitations or by the statutes of nonclaim, we shall review the entire record.

The first question for consideration is whether the district court had jurisdiction. It makes little difference what a plaintiff may say that the nature of his action is; the real test is to determine what he seeks to do or what relief he is attempting to have given him. While the allegations of the petition have heretofore been generally set out, they may be here reviewed to this extent. Plaintiff alleges the death of E. P. Burris, testate, and the qualification of the executrix of his estate; that E. P. Burris, the plaintiff herein, and another brother entered into an oral partnership arrangement in 1903 from which the other brother retired in 1912, the partnership being thereafter continued by plaintiff and E. P Burris until the death of the latter on April 3, 1930; that the plaintiff is the sole surviving partner and is managing,...