Force v. Bates
| Decision Date | 05 March 1955 |
| Docket Number | No. 39551,39551 |
| Citation | 177 Kan. 438,280 P.2d 584 |
| Parties | Grace Bates FORCE, Appellant, v. John C. BATES and Nell Bates, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Where an action is brought pursuant to G.S.1949, 60-311, the second petition must contain allegations bringing it within the terms of the above statute.
2. Where a demurrer to a petition is filed on the ground that it does not state facts sufficient to constitute a cause of action, where it appears on the face of the petition that it is barred by the statute of limitations, this demurrer is good.
3. In an action such as that described in the preceding paragraph of this syllabus, the demurrer to the petition will be considered upon the allegations of the petition and proper exhibits attached thereto and upon no other part of the record.
Alan B. Phares, Wichita, argued the cause, and Patrick J. Warnick and Henry E. Martz, Wichita, were with him on the briefs, for appellant.
George Stallwitz and Charles S. Lindberg, Wichita, argued the cause, and W. F. Lilleston, George C. Spradling, Henry V. Gott, Ralph M. Hope and Richard W. Stavely, Wichita, were with them on the briefs, for appellees.
This is an action to dissolve a partnership and for an accounting. Judgment was for the defendants sustaining a demurrer to the petition. The plaintiff had appealed.
Since the statute of limitations is involved dates will be noted. The petition was filed on February 3, 1953. It alleged that plaintiff and one of defendants were brother and sister; that beginning in 1928 plaintiff and her brother first acquired one filling station in partnership and subsequently acquired other such stations, and other real estate, all of which was taken and held in the defendant brother's name; that some of these stations were managed from time to time by plaintiff. All of them were operated by the partnership and the profits divided. The petition then alleged that at the time title was obtained to all the properties he had no intention of carrying out the trust agreement as to these titles, but fraudulently acquired title and refused to recognize plaintiff's interests; that there was a confidential relationship between them and a breach of this confidential relationship was not known by her until about July, 1951; that partnership funds were placed in a bank in defendant brother's name and she was paid certain shares of the profits from time to time; that prior to February, 1950, she believed, based upon representation of her defendant brother that she was an equal owner with him in all the properties; that after February, 1950, he refused to account to her for partnership funds he had withdrawn and refused to advise her as to the amount earned by the partnership; and plaintiff believed that since February, 1950, and from the inception of the partnership defendant had wrongfully withdrawn for his own use from the partnership funds in excess of the money paid plaintiff and had fraudulently misrepresented the partnership profits to the plaintiff by stating to her that they had been less than they actually were and the defendant John Bates was wrongfully withholding from the plaintiff what was plaintiff's rightful share of the profits; that in November, 1949, plaintiff and defendant Bates discussed incorporating the Bates Oil Company and agreed if it were accomplished the real estate would be conveyed to the corporation and each would own one-half the stock; that during all this time plaintiff was in control and management of the three filling stations, all an behalf of the partnership; that in February, 1950, plaintiff was involved in an automobile accident and was hospitalized and had not fully recovered; that immediately after this defendant Bates assumed exclusive control, operation and management of all three filling stations and all real property and refused to recognize plaintiff's interest in the property and wrongfully withheld plaintiff's share of the profits; that defendant had since February, 1950, threatened to sell some of the real property involved and if not restrained would sell it; that he should be restrained from doing so; that defendant Nell Bates was claiming some interest in the real estate and plaintiff's rights were superior to hers.
Plaintiff prayed that the partnership be dissolved and the court ascertain the rights of the parties for an accounting of the profits; that defendants be ordered to pay to plaintiff her share of the profits and for a temporary injunction restraining defendants from disposing of any of the real estate.
To this petition defendants filed a motion to require plaintiff to make it definite and certain. This motion was sustained and plaintiff, in compliance therewith, filed a supplemental petition.
On March 10, 1953, the district court, Division No. 3, pursuant to a motion of defendants, transferred the cause from that division to Division No. 2. The order of transfer recited that the transfer was made because it could not be tried in Division No. 3 on account of the fact that a former action between the same parties was filed and assigned to Division No. 2 and was dismissed without prejudice and refiled. Reference was made to a rule of the District Court of Sedgwick County requiring a transfer under such circumstances.
On January 6, 1954, defendants filed a demurrer to plaintiff's petition on the ground it did not state facts sufficient to constitute a cause of action since the petition showed on its face that the cause of action was barred by the statute of limitations. Such is a good ground for a demurrer. See Pratt v. Bernard, 159 Kan. 255, 154 P.2d 133. This demurrer was sustained. Hence this appeal.
The last mentioned date in the petition is February, 1950. The action was for relief on account of fraud, hence unless the statute be tolled in some manner the action was barred in February, 1952. See G.S.1949, 60-306, subd. 3. See, also Staab v. Staab, 158 Kan. 69, 145 P.2d 447. This petition as appears from its face was filed on February 3, 1953. So far it would be clear that the action was barred. There is argument, however, that the petition we have before us was filed pursuant to G.S.1949, 60-311. That section provides in part as follows:
'If any action be commenced within due time, * * * or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, * * * may commence a new action within one year after the * * * failure.'
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...and many other cases noted in Hatch.Dig. § 189, Lim. of Act. * * *' See, also, Pease v. Snyder, 172 Kan. 257, 240 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 The rule is a t......
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