Fakes v. Osborne, 39787
| Decision Date | 06 July 1955 |
| Docket Number | No. 39787,39787 |
| Parties | Ben FAKES, Appellant, v. Flora F. OSBORNE and M. G. Osborne, Heirs, Frank Osborne and Morris Osborne, and all others who may be concerned, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Under the established rule of this jurisdiction where it appears from the face of a petition the plaintiff's cause of action is barred by the statute of limitations such pleading does not state a cause of action and is subject to demurrer.
2. In an action to establish title and recover possession of real estate the petition is examined, and held, the trial court did not err in sustaining a demurrer to that pleading on the ground it failed to state a cause of action.
Ben Fakes, pro se.
No appearance by appellees.
Plaintiff, who is not a lawyer, commenced this action, titled as above indicated, on June 2, 1953, against the defendant persons hereinabove identified as appellees, by personally filing an inartistically drawn petition which he himself had drafted and prepared. This pleading contained numerous incoherent allegations respecting a series of transactions commencing with the year 1925 on which he based a claim of title to and sought to recover possession of certain real estate (describing it) located in Hodgeman County.
Following service of summons on some of the defendants specifically named in the title of the cause, and another individual whose interest in the action is not disclosed by the pleading involved on appellate review, all parties so served, who were represented by counsel in the court below, demurred to the petition for the reason it failed to state facts sufficient to constitute a cause of action against them in favor of the plaintiff. The trial court sustained this demurrer on September 8, 1954, and granted plaintiff the privilege of filing an amended petition within twenty days provided such amended petition be prepared and filed by an attorney. It also directed that the defendants should have ten days to plead thereto after notice of such amendment, such notice to be given by service of a copy of the amended petition.
Instead of complying with the order made by the trial court at the time of sustaining the demurrer plaintiff prepared a motion which he mailed to the clerk of the district court by registered mail, wherein he requested the court to set aside its ruling on the demurrer and render judgment in his favor on the pleadings because the demurring defendants had been properly notified of the pendency of the cause and had failed to file their demurrer within the time required by law and therefore such demurrer should have been overruled. The record before us contains a statement to the effect the trial court refused to permit the clerk to file this motion. It also discloses that thereafter such court took action which had the effect of striking the petition from the files for failure to comply with its orders respecting the filing of an amended petition. Subsequently plaintiff gave notice of appeal to this court where he now specifies divers errors to be presently considered in the order of their importance. These, it can be stated, he briefs...
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Byerley v. Braucher
...P.2d 134; Force v. Bates, 177 Kan. 438, 280 P.2d 584; Stratton v. Wood Construction Co., 178 Kan. 269, 284 P.2d 636; and Fakes v. Osborne, 178 Kan. 339, 286 P.2d 154. The rule is a two-edged sword. The rule is also well established that a demurrer should be overruled if the amended petition......
- State v. Oldham, 39772
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Osborne v. Fakes, 39819
...in this regard, even in cases where they were defendants below, See Fakes v. Osborne, 165 Kan. 176, 193 P.2d 218, and Fakes v. Osborne, 178 Kan. 339, 286 P.2d 154, is subject to criticism. In this case, where they instituted the action, procured a judgment in the lower court and then, after......