Davis v. Union State Bank
| Decision Date | 08 April 1933 |
| Docket Number | 30868. |
| Citation | 137 Kan. 264,20 P.2d 508 |
| Parties | DAVIS et al. v. UNION STATE BANK. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Cause of action must be based on some definite legal theory and petition must state facts on which theory is based.
Action cannot be based on theory of slander of title and also on theory of malicious prosecution of civil action, but must be based on one or other.
Petition with amendment held to attempt to state cause of action for slander of title.
Petition with amendment contained allegations that defendant foreclosed second mortgage and bid in property at foreclosure sale; that before expiration of period of redemption plaintiff redeemed by paying amount of sale price, with interest and costs; that plaintiff began negotiating with prospective purchaser for sale of lease on land; and that such deal was about to be completed; that defendant for purpose of clouding plaintiff's title and preventing sale of lease maliciously and without probable cause filed motion in court for order requiring sheriff to execute deed to defendant on ground that plaintiff had failed and neglected to make redemption of realty; that defendant stated to the prospective purchaser that defendant was owner of title to land; and that statements of defendant were false and made maliciously for purpose of preventing plaintiff from consummating sale.
Statements contained in and forming pertinent part of pleading filed in case in court are privileged, though false and malicious.
Where petition is filed within time but does not state cause of action, amendment filed after statute has run is too late.
1. A cause of action must be based upon some definite legal theory and the petition must state facts upon which this theory is based.
2. A plaintiff cannot be heard to say that the petition upon which he relies is based on the theory of slander of title and also malicious prosecution of a civil action. He must say one or the other.
3. The petition is examined, and it is held that plaintiff attempted to state a cause of action for slander of title.
4. Statements that are contained in and form a pertinent part of a pleading filed in a case in court are privileged even though they are false and were made maliciously.
5. Where a petition is filed within time but does not state a cause of action on account of an averment relating to substance, an amendment filed after the statute has run is too late.
Appeal from District Court, Cowley County; Oliver P. Fuller, Judge.
Action by Herman Davis and others against the Union State Bank, a corporation. Judgment for defendant, and plaintiffs appeal.
George Templar, of Arkansas City, and James A. McDermott and Richard B. McDermott, both of Winfield, for appellants.
W. L Cunningham, D. Arthur Walker, Fred G. Leach, and Wm. E Cunningham, all of Arkansas City, for appellee.
This is an action to recover damages for the filing of a motion in a foreclosure action. The motion was false and untrue and clouded the title of plaintiffs to certain real estate. Judgment was for defendant. Plaintiffs appeal.
The petition of plaintiffs alleged facts about as follows:
Cyrus D. Sanner and his wife, Myrtle B. Sanner, had been the owners in fee simple of the real estate in question. They had given the Union State Bank a second mortgage on this real estate. The mortgage became in default and the bank foreclosed and bid in the property and received a certificate of purchase. Some time subsequent to this Herman Davis became the owner of the fee. The plaintiffs Dave Schonwald, Morris Schonwald John Welch, and Guy Ormiston acquired undivided interests in the oil and gas rights in the land.
The petition alleged that before expiration of the period of redemption Herman Davis redeemed the real estate by paying to the clerk of the district court of Sumner county the amount of the sale price, with interest and costs; that at the time of redemption this land had a great value for oil and gas leasing purposes; that plaintiffs began negotiating with the Marland Production Company, and this company had offered plaintiffs $18,000 for a lease on this land and that such a deal was about to be completed when "the defendant for the purpose of clouding the title of the said plaintiff to said land, and for the purpose of defeating and preventing the plaintiffs to sell said lease and obtain said purchase price, maliciously and without probable cause therefor did cloud the title of the said plaintiffs by filing in the District Court of Sumner County, Kansas, in the action referred to above a motion asking for an order of said court requiring the sheriff of said county to execute to the said Union State Bank a sheriff's deed for said premises, maliciously and falsely claiming in said motion that the plaintiff Herman Davis had failed and neglected to make redemption of said real estate from the sale above referred to by failing to pay to the clerk of said court the amount of the purchase price at which said property was sold at said sheriff's sale"; that the allegations of the motion were false and that defendant knew they were false and that the defendant knew at the time that Davis had redeemed the land; that the issues raised by the motion were tried in the district court of Sumner county and it was determined that Davis had made redemption according to law; that at the time the motion was filed and during the negotiations an oil and gas lease on the land had a value of $18,000 but that while the motion was pending an offset well was drilled and found to be nonproductive of oil and gas and thereafter this land had no value for these purposes; that by reason of the false assertions of defendant, as alleged, the plaintiffs were damaged in the amount of $18,000 and the Marland Production Company refused to complete the negotiations and the purchase of the oil and gas lease because of the litigation instituted by defendant.
Subsequent to the filing of the first petition plaintiffs filed an amendment to the petition in which they alleged that in addition to the filing of the motion described in the original petition and as a part of the same transaction ...
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