Drake v. First Nat. Bank of Ft. Scott

• Decision Date: 04 June 1885
• Parties: C. F. DRAKE v. THE FIRST NATIONAL BANK OF FORT SCOTT
• Court: Kansas Supreme Court

7 P. 219

33 Kan. 634

C. F. DRAKE v. THE FIRST NATIONAL BANK OF FORT SCOTT

Supreme Court of Kansas

June 4, 1885

Error from Bourbon District Court.

THE opinion contains a sufficient statement of the case. The plaintiff Drake brings here for reversal certain orders of the court below, made in his action against The First National Bank of Fort Scott, at the September Term, 1883.

Judgment affirmed.

A. A Harris, for plaintiff in error.

Ware & Ware, and J. D. McCleverty, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

On April 4, 1883, an action was pending in the district court of Bourbon county, wherein C. F. Drake was the plaintiff and the First National Bank of Fort Scott, Kansas, was the defendant. On that day the defendant filed two motions, one asking the court to require the plaintiff to amend his amended petition so as to make it more definite and certain in certain particulars, and the other asking the court to require the plaintiff to further amend such petition by striking out certain alleged surplus and redundant matters therein contained. On May 23, 1883, these motions were heard, and both of them were partially sustained and partially overruled, and the plaintiff was required to amend his amended petition so as to make it correspond to the orders of the court made on said motions, and sixty days were given him within which to so amend. The plaintiff, however, did not amend in any particular, and for that reason the court below at the September term, 1883, dismissed his action. The orders of the court below partially sustaining the defendant's motions and dismissing the plaintiff's action were duly excepted to by the plaintiff, and to reverse these orders the plaintiff, as plaintiff in error, on August 12, 1884, brought the case to this court.

It is conceded by the plaintiff that if the motions were properly sustained, the court below committed no error in dismissing his action; but it is claimed by him that the motions were erroneously sustained. The plaintiff, in his brief in this court, states that the only question now submitted for determination is, whether or not the said motions were rightfully sustained. The defendant, however, does not admit that this is the only question, but suggests that there are still others to be determined. We shall consider only the question presented by the plaintiff; for even upon that question we think the decision of this court must be in favor of the defendant. This question, however, involves several others, some of which we do not think will require any consideration. For instance, we do not think that it is necessary to enter into any consideration as to whether the court below erred, or not, in requiring the plaintiff to so amend his amended petition as to make it more definite and certain in certain particulars; for a decision of the other questions involved in the case will require an affirmance of the final decision of the court below, in whatever way this question of definiteness or certainty in the petition, or want of the same, might be decided; and besides, the consideration of this question would involve the consideration of many difficult and intricate questions which may never again arise. The principal question which we shall consider is, whether the court below erred in requiring the plaintiff to amend his amended petition by striking out certain alleged surplus and redundant matters.

The plaintiff's action is founded upon the following instruments in writing, to wit:

"$ 5,500.

THE FIRST NATIONAL BANK, FORT SCOTT, KANSAS, Oct. 18, 1880.

"C. F. Drake has deposited in this bank fifty-five hundred dollars, payable to the order of A. A. Harris, trustee, on return of this certificate properly indorsed.

(Signed)

C. F. MARTIN, Assistant Cashier."

"When the First National Bank of Fort Scott, Kansas, at any time after November 1, 1880, and up to December 1, 1880, shall convey by good and sufficient quitclaim deed or deeds, free, and clear of all tax liens and incumbrances, including the taxes of 1880, all the real estate included in the real-estate account of said bank, and the same referred to in an agreement made September 25, 1880, by and between W. Chenault and C. F. Drake, then A. A. Harris, trustee, shall indorse the same to said bank.

"But if said bank shall not properly and legally execute and deliver such deed or deeds as is herein mentioned, as to such real estate, then said Harris, as trustee, shall indorse this certificate and deliver the same to C. F. Drake, who in that event shall be authorized to receive the money thereon.

"This stipulation and agreement consented to by said Drake, said Chenault, and said bank, all of whom agree to carry out its provisions so far as the same may devolve upon them respectively. This, October 18, 1880.

(Signed)

C.H. OSBUN, Cashier.

W. CHENAULT.

C. F. DRAKE."

The plaintiff...