First Federal Savings & Loan Ass'n v. Thurston

• Citation: 80 P.2d 7,148 Kan. 88
• Decision Date: 11 June 1938
• Docket Number: 33860.
• Parties: FIRST FEDERAL SAVINGS & LOAN ASS'N v. THURSTON. [*]
• Court: United States State Supreme Court of Kansas

80 P.2d 7

148 Kan. 88

FIRST FEDERAL SAVINGS & LOAN ASS'N v. THURSTON. ^[*]

No. 33860.

Supreme Court of Kansas

June 11, 1938

Syllabus by the Court.

In action on note, wherein defendant made a defense of want of consideration, fraud and false representations, plaintiff, by pleading over, did not abandon error in the overruling of its demurrer to defendant's answer, where the reply was not inconsistent with the demurrer.

In action on note against husband and wife by building and loan association, wife's answer was insufficient to plead a defense of want of consideration, where it was alleged merely that wife was not party to contract of sale between husband and association, that conveyance of land sold was to her husband, that she received no benefit from the transaction and that she did not intend to sign note but only the mortgage.

In action on note against husband and wife by building and loan association, allegation of wife's answer was insufficient to plead a defense of fraud or false representations by the secretary of the association, where there was no allegation that wife was unable to read note before signing it, or that she asked any one to read it to her. Gen.St.1935, 17-1011.

Where defendant in action on note failed by her amended answer to sufficiently plead defenses of want of consideration and fraud relied on by her, trial court should have sustained plaintiff's motion for judgment on the pleadings.

In an action on a note given by a husband and wife to a building and loan association, where the wife alone made a defense which was want of consideration and fraud and false representations by the secretary of the building and loan association, the allegations of the amended answer being fully considered in connection with the motions, demurrer and reply of plaintiff, it is held: (1) that the reply was not inconsistent with the demurrer filed by the plaintiff to the amended answer and was not an abandonment of the error, if any, in the overruling of the demurrer; (2) that the amended answer did not sufficiently plead a defense of want of consideration; (3) nor did it sufficiently plead a defense of fraud or false representations or lack of explanation or statement to constitute fraud; (4) that the demurrer to the amended answer should have been sustained; and (5) that the motion for judgment for plaintiff on the pleadings should have been sustained.

Appeal from District Court, Mitchell County; William R. Mitchell Judge.

Action by the First Federal Savings & Loan Association against Luly Thurston and another to recover on a building and loan form note. From a judgment in favor of the named defendant, the plaintiff appeals.

Reversed and cause remanded, with directions to render judgment on the pleadings for the plaintiff.

R. L Hamilton, of Beloit, for appellant.

Frank A. Lutz and A. E. Jordan, both of Beloit, for appellee.

HUTCHISON Justice.

This action was commenced by a building and loan association on one of its building and loan form notes against the appellee and her husband, a copy of the note being attached to the petition as an exhibit.

Personal service was had on both defendants, and judgment was rendered against both defendants for the balance due on the note. Three days after such judgment was rendered, the wife filed a motion to open up and set aside the judgment as to her, which was done, and she was permitted to answer. She did so and attached to her answer by reference a contract made between her husband and the building and loan association just a month before the date of the note, in which the association agreed to sell the husband a certain five-acre tract for $2,200 and to finance him for $1,700 of the purchase price. The husband agreed to purchase the property and pay $500 of the purchase price in cash and secure the balance by note and mortgage on the property purchased. The answer attempted to plead want of consideration, fraud and misrepresentation in securing her signature to the note.

Motions were filed by the plaintiff to make the answer more definite and certain and also to strike out certain parts thereof. These motions were in general overruled but defendant was given leave to file an amended answer, which she did, and it was more in detail but along the same line as the original answer. The plaintiff on July 30, 1937, filed a demurrer to every part of the amended answer except the general denial, and it was overruled on October 8, 1937. Two motions to strike out certain parts of the amended answer were filed by the plaintiff in the month of October and overruled the same month. On December 22, 1937, the plaintiff by leave of court filed a reply and a motion for judgment on the pleadings, which motion was by the court overruled the same day it was filed. Another motion to strike out certain parts of the amended answer was filed January 3, 1938, and overruled January 10, 1938. Notice of appeal was filed by the plaintiff with the clerk of the district court on January 11, 1938, containing acknowledgment of service and was filed with the clerk of this court on January 19, 1938. The overruling of these several motions and the demurrer to the amended answer are assigned by plaintiff as errors. The petition, amended answer and reply were each verified.

The dates above noted are given because the second objection stated by the appellee to the review of these proceedings is that the appeal has not been taken in time. The rulings on the demurrer and some of the motions to strike out portions of the amended answer were made more than two months before the date of appeal, and it is claimed review is excluded by section 2, chapter 268 of the Session Laws of 1937, but section 5 of the same act provides that the two months' rule as to previous orders shall not apply where the appeal is taken from the final judgment within the two months, which was done in this case.

Appellee also challenges the right of appellant to be heard as to the rulings on the motions to make more definite and certain and to strike out certain portions of the amended answer because such rulings are not appealable orders and as to the overruling of the demurrer because plaintiff waived such right by pleading over. Appellee cites on the first point G.S.1935, 60-3303, and Whitlaw v. Insurance Co., 86 Kan. 826, 122 P. 1039, and Fox v. Ryan, 121 Kan. 172, 246 P. 520. Under these authorities there arises the question of whether or not the portions of the answer which the plaintiff moved to strike out were such as would affect a substantial right in the action or determine the action, as is specifically mentioned in the statute above cited. In both the cases cited above the portion of the pleading attacked by motion was not so held, and unless it can be so held it is not reviewable under these authorities. We prefer at this time to pass that question because it necessarily calls for a conclusion as to its affecting substantial rights in the action.

The second challenge raised by the appellee to the review in this case is on account of the abandonment of the error, if any, in the overruling of the demurrer to the answer when the plaintiff filed its reply. Not every pleading over is a waiver of the right to review alleged errors previously committed. One exception is where the question raised by the demurrer involves the matter of the pleading stating a cause of action or defense. Besides the pleading following the ruling on demurrer must be consistent with the attitude of the party demurring and pleading. It is said on this subject in 2 Am.Jur., Appeal and Error, section 208, that--

"The general rule is that a party, by pleading over after his demurrer is overruled, waives his right to institute appeal or error proceedings from such order or to have such order reviewed on appeal from the final judgment. There are some well-recognized exceptions to the rule, however, one of which is error in overruling a demurrer to a complaint which does not state a cause of action, and the other, error in overruling a demurrer for want of jurisdiction."

In the case of Scovill v. Scovill, 144 Kan. 759, at page 763, 62 P.2d 852, at page 855, it was said:

"The appellee insists that the appellant abandoned his right to appeal from the adverse ruling on his demurrer to the petition when he answered, but it seems from the authorities and decisions that, in order to constitute an abandonment, his attitude must be inconsistent with that which he maintained in support of his demurrer. No inconsistency is apparent in the appellant's attitude in these two steps in this case. In his demurrer he urged that the petition, as a matter of law, did not state facts sufficient to constitute a cause of action. The trial court held otherwise. He then answered the petition, denying the matters of fact set up in the petition. These are by no means inconsistent positions."

There is no inconsistency in the attitude of the plaintiff in the case at bar in the filing of the demurrer to the amended answer and later filing a reply in the form of a general denial. The demurrer attacked all of the amended answer except the general denial which was in effect an attack upon the entire ground of defense.

There is another reason why the matter in controversy between the parties to this action is subject to review in this court even if there should be a substantial objection to the review of the overruling of the demurrer to the amended answer and that is that immediately after the filing of the reply in this case the plaintiff filed a motion for judgment on the pleadings, which was overruled. An exception was taken to that ruling immediately thereafter and the notice of appeal was served and filed the day after such ruling. So we have here...