Harmon v. James
| Decision Date | 10 July 1937 |
| Docket Number | 33264. |
| Citation | 69 P.2d 690,146 Kan. 205 |
| Parties | HARMON v. JAMES. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
A party who voluntarily acquiesces in, ratifies, or recognizes validity of judgment, order, or decree, or otherwise takes position inconsistent with right to appeal there from thereby impliedly waives, or is estopped to assert, his right to have such judgment, order, or decree reviewed.
Where demurrer to petition is sustained and plaintiff is given time within which to file amended petition and does file amended petition with consent of court, plaintiff cannot, while amended petition is pending, appeal from order sustaining demurrer to petition.
Where demurrer to petition was sustained and plaintiff given twenty days within which to file amended petition, permitting plaintiff to file amended petition more than twenty days later and at subsequent term was proper under statute, since order sustaining demurrer was not a "final judgment" (Gen.St.1935, 60-756, 60-759, 60-3005 60-3007, 60-3302, 60-3303).
1. Where a demurrer to a petition is sustained and the plaintiff is given time within which to file an amended petition and subsequently with the consent of the trial court does file an amended petition, the plaintiff cannot, while the amended petition is pending, appeal from the order sustaining the demurrer.
2. A demurrer to a petition was sustained and plaintiff was given twenty days within which to file an amended petition; more than twenty days later and at a subsequent term the plaintiff obtained leave to file, and did file, an amended petition. Held, that since the order sustaining the demurrer was not a final judgment, the trial court had authority to permit the filing of the amended petition.
Appeal from District Court, Osage County; Robert T. Price, Judge.
Action by Mrs. Josephine Harmon, administratrix of the estate of Louise Wray, deceased, against William James. From a judgment for defendant, plaintiff appeals and defendant cross-appeals.
Appeal dismissed and judgment affirmed.
A. K Stavely, of Lyndon, and A. Harry Crane and Ward D. Martin both of Topeka, for appellant and cross-appellee.
J. J. Schenck and C. P. Schenck, both of Topeka, for appellee and cross-appellant.
This was an action to recover money on account of an alleged oral contract. Judgment was for defendant. Plaintiff appeals.
The petition alleged that on March 15, 1915, the defendant agreed that if Louise Wray would keep house for him the remainder of his life he would give her all the property he owned at the time of his death, and that he was at the time of the filing of the petition about sixty-four years old. The petition further alleged that Louise died intestate on January 29, 1933, and that plaintiff in this case was appointed administratrix of her estate; that defendant on January 11, 1923, executed a will giving all his property to Louise; and that in addition to giving her all his property he was to pay her $3 a week for expenses and services, and that there was about $2,500 due. The prayer was for $29,166 an account of the contract to make a will and for $2,500 on account of the $3 a week contract.
The trial court sustained a motion of the defendant requiring the plaintiff to separately state and number her causes of action. The plaintiff attempted to comply with this order by filing an amended petition. Defendant filed a motion to strike this amended petition from the files for the reason that plaintiff had not complied with the order to separately state and number. This motion was sustained.
On September 12, 1935, plaintiff filed a third amended petition. In this petition she alleged the contract and that Louise performed it until her death, at which time her performance of the contract was ended, and defendant was still living and was sixty-four years old and his life expectancy was 11.67 years.
The petition then alleged that no part of the agreement had been carried out by defendant, and that Louise had received no pay for the work she had done except various sums which plaintiff was unable to state. This petition alleged that no claim was being made for any balance due on account of the agreement to pay $3 a week. This petition also contained an allegation that defendant had made a will leaving all his property to Louise, and delivered it to Louise, and that on the death of Louise it came into possession of plaintiff. This petition then contained an allegation as to the property owned by defendant at the time of the death of Louise, and that Louise had worked for defendant under the contract from March 15, 1915, to January 29, 1933, and by reason of the time of services of Louise and the expectancy of life of defendant, the deceased at the time of her death was entitled to two-thirds of the value of all the property owned by defendant at that time. This petition then alleged that the contract became irrevocable by reason of its performance by Louise, and that plaintiff was entitled to have a trust imposed upon all the property of defendant in such proportion as the period served by Louise bore to the life expectancy of defendant.
The prayer was that this contract be enforced; that defendant be decreed to hold his property subject to a trust in favor of plaintiff in such proportion as the time during which Louise performed the contract bore to the life expectancy of defendant; that this trust be declared to be a lien; and that at the death of defendant this property be applied to the satisfaction of this lien.
On the 18th day of February, 1936, the trial court sustained a demurrer of the defendant to this third amended petition and gave plaintiff twenty days in which to file a fourth amended petition. Plaintiff did not file an amended petition within twenty days but waited until April 3, 1936, and on that date filed a fourth amended petition. On this petition the trial court indorsed as follows: "Permission granted to file as of time." It will be noted that this fourth amended petition was filed at a subsequent and different term of court than the one to which the demurrer was sustained. The allegations of this petition will not be set out here in view of the disposition we have concluded to make of the case. Suffice it to say that on June 9, 1936, the motion to strike this fourth amended petition from the files on the ground that the court had no authority to permit it to be filed at a subsequent term was argued and on June 10, 1936, this motion was overruled. Thereupon a motion of defendant to make the fourth amended petition definite and certain was filed. On June 10, 1936, counsel for plaintiff offered to comply with one point on this motion and did comply with it and the balance of the motion was overruled by the trial court. Thereupon the defendant filed a demurrer to the fourth amended petition. Briefs have been filed by both plaintiff and defendant on this demurrer, but it has not yet been disposed of by the trial court.
While this demurrer was pending undisposed of and on August 13, 1936, plaintiff obtained from the trial court leave to amend her fourth amended petition. This amendment was made by interlineation.
On August 17, 1936, plaintiff appealed from the order of the trial court sustaining the ...
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... ... of judgment and dismiss appeal should be sustained. 4 C. J ... 396-397; 2 Amer. Jur. 972; Harmon v. James (Kan.) 69 ... P.2d 690; Elliott v. Orton (Okla.) 171 P. 1110; ... Ottenheimer v. Mountain States Supply Company (Utah) ... 188 P ... ...
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Rockhill v. Tomasic
...the filing of an amended pleading pursuant to G.S.1949, 60-759 within the same term of court or even at a subsequent term (Harmon v. James, 146 Kan. 205, 69 P.2d 690; In re Estate of Reed, supra, 157 Kan. at page 606, 142 P. 824; Waddell v. Woods, 160 Kan. 481, 484, 163 P.2d 348). However, ......
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...“impliedly waives” the right to appeal it. In re Estate of Hill, 179 Kan. 536, Syl. ¶ 1, 297 P.2d 151 (1956); Harmon v. James, 146 Kan. 205, 207–08, 69 P.2d 690 (1937); see generally 36 C.J.S., Federal Courts § 419 (noting that a party who acquiesces in judgment's validity “impliedly waives......
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In re Reed's Estate
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