Crane v. Lowe

• Decision Date: 08 October 1898
• Docket Number: 10524,10525
• Citation: 54 P. 666,59 Kan. 606
• Parties: ROBERT CRANE v. HATTIE H. LOWE et al. THOMAS T. WALLACE v. HATTIE H. LOWE et al
• Court: Kansas Supreme Court

54 P. 666

59 Kan. 606

ROBERT CRANE v. HATTIE H. LOWE et al.

THOMAS T. WALLACE v. HATTIE H. LOWE et al

No. 10524, No. 10525

Supreme Court of Kansas

October 8, 1898

Decided July, 1898.

Errors fro Coffey District Court. Charles B. Graves, Judge.

Judgment reversed.

C. B Graves and G. E. Manchester, for plaintiffs in error.

J. Jay Buck and J. G. Hutchison, for defendants in error.

OPINION

ALLEN, J.

Two cases are submitted together. Each is an action of ejectment brought by Annie P. Calloway and others to recover lands owned in his lifetime by James Calloway, under whom the plaintiffs claim the property as heirs. The defendants claim title by purchase from the executor of Calloway's will.

Objections are made to the sufficiency of the records filed in this court and to the certificates of the clerk to the transcripts. We think, however, that as explained by the stipulations of counsel attached to the petitions in error they are sufficient. It appears from these stipulations that the certificate of the clerk, though apparently inconsistent with some of the papers included in the transcript, is really truthful; and that the cases were actually heard and determined on the pleadings appearing in the record, although some of the papers are entitled in other cases brought by the same plaintiffs against other parties.

The actions were commenced on July 21, 1888. On the twenty-eighth of June, 1894, amended and supplemental petitions were filed alleging the death of Annie P. Calloway on the tenth of October, 1890. No attempt was made to revive the action, and the fact of the death of Annie P. Calloway was first made to appear of record by the amended and supplemental petitions. The first claim of error advanced by counsel is based on the refusal of the court to hold that the actions abated on the failure of the plaintiffs to revive the same within a year after the death of Mrs. Calloway.

Section 422 of the Code of Civil Procedure (Gen Stat. 1897, ch. 95, § 422), provides:

"Where there are several plaintiffs or defendants in an action, and one of them dies, or his powers as personal representative cease, if the right of action survive to or against the remaining parties the action may proceed, the death of the party or the cessation of his powers being stated on the record."

Under the claim set forth in the amended petition, the interests of the parties plaintiff were severable. Annie P. Calloway, the widow, claimed one-half of the land, and the other plaintiffs, who were children and the heirs of deceased ones, claimed the other half. It was not necessary for all of the plaintiffs to join in the action. Either of them might have brought an action to recover his separate interest. The plaintiffs other than Annie P. Calloway claimed one-half of the land in their own right, for which they might have maintained an action regardless of the wishes of Annie P. Calloway. Her death left this separable cause of action still in court, with no occasion for reviving it. After her death they succeeded by inheritance to whatever interest she had, and this gave to them an added cause of action, which they might properly set up by supplemental petition and tack to the cause of action in their favor stated in the original petition. Technical revivor was not necessary, for they did not necessarily continue to prosecute that branch of the action originally instituted by Mrs. Calloway in her own interest.

The answers to the amended and supplemental petitions allege that James Calloway, through whom both parties claimed title, died in Wilkes County, North Carolina, on the twenty-fifth of December, 1878, owning the lands in controversy, and a large amount of other lands in North Carolina and Missouri, and in Lyon, Greenwood and Coffey counties in Kansas that on the thirtieth day of December, 1878, his will was duly probated in the county of his residence; that George H. Brown duly qualified as executor thereof; that by the terms of the will bequests were given to and provisions made for his widow, Annie P. Calloway, and the executor was directed to sell the lands; that a copy of the will was immediately delivered to Annie P. Calloway and the personal property bequeathed to her was at once delivered to her by the executor; that on the nineteenth of February, 1879, the executor presented a duly authenticated copy of the will to the probate court of Lyon County, Kansas, where it was by order of said court duly recorded; that on the fourteenth of November, 1879, a duly authenticated copy of the will was recorded in the probate court of Coffey County, Kansas; that on the seventeenth of October, 1879, Brown, as executor, sold to Robert Crane the lands in controversy in case No. 10524, and on the twentieth of December, 1882, said Brown, as executor, sold to Thomas T. Wallace the lands in controversy in case No. 10525, for the full value...