Gas Service Co. v. Consolidated Gas Utilities Corporation

• Court: Kansas Supreme Court
• Writing for the Court: HOCH, Justice.
• Citation: Gas Service Co. v. Consolidated Gas Utilities Corporation, 150 Kan. 715, 96 P.2d 608 (Kan. 1939)
• Decision Date: 09 December 1939
• Docket Number: 34293.
• Parties: GAS SERVICE CO. v. CONSOLIDATED GAS UTILITIES CORPORATION.

96 P.2d 608

150 Kan. 715

GAS SERVICE CO. v. CONSOLIDATED GAS UTILITIES CORPORATION.

No. 34293.

Supreme Court of Kansas

December 9, 1939

Syllabus by the Court.

An appeal may be taken from an order overruling a motion for judgment on the pleadings only where it can be said on the record that the motion concedes the facts well pleaded by the opposing party, and is thus equivalent to a demurrer. Gen.St.1935, 60-3302, subds. 1-3; 60-3303.

An order overruling a motion for judgment on the pleadings after a demurrer, which raised the same question of law, had previously been overruled, and no timely appeal therefrom had been perfected, was not a "final order" from which an appeal would lie within meaning of statute. Gen.St.1935 60-3302, subds. 1-3; 60-3303, 60-3309.

1. Appeal may be taken from an order overruling a motion for judgment on the pleadings only where it can be said, on the record, that the motion concedes the facts well pleaded by the opposing party, and thus is equivalent to a demurrer.

2. Appeal may not be taken from an order overruling a motion for judgment on the pleadings where a demurrer which raised the same question of law had previously been overruled and no appeal therefrom had been perfected in time.

3. The record is examined in an action for damages, the rules above stated found applicable, and it is held that no appeal lies from the order complained of.

Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.

Action by the Gas Service Company against the Consolidated Gas Utilities Corporation for recovery of damages. From an order overruling defendant's motion for judgment on the pleadings, the defendant appeals.

Appeal dismissed.

Earle W. Evans, Joseph G. Carey, W. F. Lilleston, George C Spradling, Henry V. Gott, George Stallwitz, A. M. Buzzi, and Paul J. Donaldson, all of Wichita, for appellant.

A. M Ebright, P. K. Smith, and R. A. Hickey, all of Wichita, and Robert D. Garver, of Kansas City, Mo., for appellee.

HOCH Justice.

This was an action for recovery of damages. The case is here on appeal by the defendant from an order of the court overruling defendant's motion for judgment on the pleadings.

The first question presented is whether the order from which the appeal was taken is an appealable order.

G.S.1935 60-3302, which deals with the jurisdiction of this court, is in part as follows:

"The supreme court may reverse, vacate or modify any of the following orders of the district court or a judge thereof, or of any other court of record, except a probate court. First--A final order. Second--An order *** that sustains or overrules a demurrer. Third --An order that involves the merits of an action, or some part thereof."

G.S.1935, 60-3303, defines a final order as follows:

"A final order which may be vacated, modified or reversed as provided in this article is an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment."

The motion read as follows:

"Comes now defendant and moves the court to enter judgment in its favor and against the plaintiff on the pleadings filed herein for the reason that such pleadings disclose that plaintiff is not entitled to recover from the defendant and the defendant is entitled to judgment.

"The defendant reserves all of its rights in the presentation of evidence and proof and hearing upon the merits of the issues involved in this cause, in the event it should be determined that final judgment should not be entered pursuant to this motion."

Both parties base their argument on interpretation of the second paragraph of the motion in which defendant attempted to reserve certain rights. The appellant contends that the only purpose of the second paragraph was to make certain that opportunity would remain to try out issues of fact in the event the issue of law presented by the motion should be decided against it. Appellee contends that the paragraph attempts to reserve issues of law as well as issues of fact that the motion was not an unconditional submission, and that therefore no appeal lies from the order overruling it. But we shall concern ourselves very little with these divergent interpretations of the second paragraph, since they do not present, in our opinion, the primary question of appealability. We need only say that if the paragraph only reserved the right to present facts, the appellant would have had that right without reserving it, and that, on the...