Hodge v. Freeman

• Decision Date: 04 March 1961
• Docket Number: 42054,Nos. 42020,s. 42020
• Citation: Hodge v. Freeman, 359 P.2d 845, 187 Kan. 650 (Kan. 1961)
• Parties: Dan A. HODGE, Appellant, v. Arthur T. FREEMAN, Earl Wakefield, Jack Yetman, Albert Hayutin and Lyndon Gamelson, Appellees.
• Court: Kansas Supreme Court

Page 845

359 P.2d 845

187 Kan. 650

Dan A. HODGE, Appellant, v.Arthur T. FREEMAN, Earl Wakefield, Jack Yetman, Albert Hayutin and Lyndon Gamelson, Appellees.

Nos. 42020, 42054.

Supreme Court of Kansas.

March 4, 1961.

Rehearing Denied April 12, 1961.

Syllabus by the Court

In an action to recover money on a written contract and for an accounting, defendant's motion to strike was sustained in part and to make definite and certain was sustained in toto, and plaintiff filed his first amended petition.A demurrer to that pleading, on the ground that it failed to state a cause of action was sustained, and plaintiff was granted twenty days in which to amend.Plaintiff complied with that ruling and filed a second amended petition.Defendant's motion to strike that pleading from the files, on the ground it contained no additional, substantial, material facts which would affect the result as against a demurrer, and omitted substantial, material facts previously alleged, was sustained.Plaintiff filed two separate appeals.The first appeal was from two orders of the trial court: one from the ruling sustaining the demurrer, and the other from the motion to strike and to make definite and certain.The second appeal was from the order striking the second amended petition.The record is examined, and for reasons stated in the opinion, it is held: (1) the ruling on the demurrer to the first amended petition is not properly here for review; (2) the ruling on the motion to strike and to make definite and certain did not affect a substantial right, or determine the action, and was not an appealable final order as contemplated by G.S.1949, 60-3302 and 60-3303, and (3) the motion to strike the second amended petition was properly sustained.

George E. Grist, Wichita, argued the cause, and Lester Wilkinson and Tom Harley, Wichita, were with him on the briefs, for appellant.

J. B. McKay, El Dorado, argued the cause, and James B. McKay, Jr., El Dorado, was with him on the briefs, for appelleeEarl Wakefield.

FATZER, Justice.

The plaintiff's petition in the court below contained two causes of action.The first sought to recover money due under a written contract entered into with one Jack Yetman on September 24, 1957, which was in part assigned to defendantsArthur T. Freeman, Albert Hayutin, Lyndon Gamelson and Earl Wakefield, for the purpose of managing, handling and promoting the plaintiff as an amateur and professional boxer and wrestler.The second sought to require the defendants to account to him for 50 percent of the net proceeds of 'the gate' received by them as result of his five professional fights.Earl Wakefield is the sole appellee, hereafter referred to as the defendant.

The defendant filed a motion to strike certain portions of the petition and to make other allegations definite and certain.On September 21, 1959, the trial court sustained the portion to strike in part and the portion to make definite and certain in toto.On October 9, 1959, the plaintiff complied with the trial court's order and filed his first amended petition containing two causes of action.The defendant filed his demurrer upon the ground that it failed to state facts sufficient to constitute a cause of action.

On January 4, 1960, the trial court sustained the demurrer and granted the plaintiff 20 days to further plead.On January 27, 1960, he filed his second amended petition containing one cause of action in which he sought to recover the money alleged to be due; an accounting of profits, and a cancellation of the contract.

On February 13, 1960, the defendant filed his motion to strike the second amended petition from the files and in the alternative to require the plaintiff to separately state and number his causes of action.One of the grounds of the motion to strike was that the second amended petition did not contain any additional, substantial, material facts which would affect the result as against a demurrer, but, to the contrary, omitted substantial, material facts which were alleged in the first amended petition.

On February 29, 1960, the trial court sustained the defendant's motion to strikethe plaintiff's second amended petition from the files for the reason set forth in the motion.

On March 4, 1960, the plaintiff perfected two appeals.AppealNo. 42,020 is from two orders of the trial court: one sustaining the defendant's demurrer to the first amended petition on January 4, 1960, and the other sustaining the defendant's motion to strike and to make definite and certain on September 21, 1959.The second appeal, No. 42,054 is from the order of February 29, 1960, striking the second amended petition from the files.Since both appeals were from the same litigation in the court below they were consolidated.

The defendant first contends that no final order is presented for appellate review and that the final appeal should be dismissed.

The notice of appeal in case No. 42,020 was filed within 60 days after the demurrer was sustained on January 4, 1960, but in sustaining the demurrer, the trial court granted the plaintiff'leave to file a second amended petition within 20 days from this date.'Since the plaintiff acquiesced in and complied with that order by filing his second amended petition, he is now precluded from prosecuting an independent appeal therefrom.In Farran v. Peterson, 181 Kan. 145, 309 P.2d 677, this court said:

'G.S.1949, 60-761, provides that if a demurrer be sustained the adverse party may amend if the defect can be remedied by way of amendment.At the time it sustained the demurrers to the second amended petitionthe trial court granted plaintiff twenty days within which to amend.Plaintiff acquiesced in that order and within time filed her third amended petition.In Harmon v. James, 146 Kan. 205, 69 P.2d 690, 691, it was held:

"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.'(Syl. 1.)

'A somewhat analogous situation was presented in Baldwin v. Fenimore, 149 Kan. 825, 89 P.2d 883, in which it was said that the plaintiff may not complain nor may the defendant take advantage of the ruling on the demurrer because of the fact that at the time of the ruling time to plead further was given, and under such circumstances there was no final judgment.

'Under the circumstances, we think the ruling on the demurrer to the second amended petition is not properly before us for review for the reason that plaintiff's action in filing the third amended petition, pursuant to the court's permission so to do, constituted, from a practical standpoint, an acquiescence in the judgment and ruling.'181 Kan. loc.cit. 149, 309 P.2d loc.cit. 680.

See, also, Miles v. Hamilton, 106 Kan. 804, 189 P. 926, 19 A.L.R. 276, and 1 Hatcher's Kansas Digest [Rev.Ed.], Appeal and Error, § 70, p. 105 for a list of our many cases to the same effect.

Neither do we think the order of September 21, 1959, sustaining the defendant's motion to strike and to make definite and certain presents a final order for appellate review.That order was reviewable in the timely appeal from the ruling on the demurrer under G.S.1959 Supp. 60-3314a since the notice of appeal specified it as one of the orders from which the appeal was taken (Holmes v. Kalbach, 173 Kan. 736, 740, 741, 252 P.2d 603).But, as we have seen, the appeal from the order sustaining the demurrer is not properly before us for review since the plaintiff acquiesced and complied with the order of January 4, 1960, by filing his second amended petition.

A motion to strike and to make definite and certain is, of course, addressed to the sound...