Lanning v. Goldsberry
| Decision Date | 06 December 1952 |
| Docket Number | No. 38750,38750 |
| Citation | 173 Kan. 654,250 P.2d 812 |
| Parties | LANNING v. GOLDSBERRY. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Under G.S.1949, 60-704, second, 60-710 and 60-717, a pleader is required to set forth his cause of action or defense in ordinary and concise language without repetition and the inclusion of a transcript of evidence, taken in another proceeding, as a part of his pleading is not in compliance with the requirements of the foregoing sections of the code of civil procedure and is neither necessary nor proper.
2. A motion for judgment, like a demurrer, admits all facts well pleaded by the opposing party and should not be sustained unless, upon the admitted facts, which must be favorable construed, it clearly appears that the party making the motion is entitled to judgment.
3. The record examined, and it is held, the trial court erred in sustaining a motion for judgment on pleadings which are fully set out in the body of this opinion.
Harry A. Lanning, of Seneca, argued the cause, William M. Drumm, of Seneca, and Ralph H. Noah, of Beloit, on the briefs, for appellant.
A. Harry Crane, of Topeka, argued the cause, Ward D. Martin, Arthur L. Claussen, Richard E. Pringle, all of Topeka, and Richard W. Shaw, of Hiawatha, on the briefs, for appellee.
This action was commenced in district court by the administrator of an estate in an effort to obtain the possession of and quiet title to certain real estate (a house and lot located in the city of Sabetha), alleged to be a part of the assets of the estate, the title of which was in the name of the defendant. Following joinder of issues by appropriate pleadings defendant's motion for judgment on the pleadings was sustained and the trial court rendered judgment decreeing him to be the owner of the real estate and quieting his title thereto. Plaintiff appeals from that judgment.
The all decisive issue involved on appellate review is of such character as to require an examination of the pleadings and a detailed narration of what is to be found therein.
The petition contains allegations which, for our purposes, may be summarized in the following manner: Walter S. Goldsberry a resident of Sabetha, Nemaha County, Kansas, died intestate on January 4, 1948. A few days thereafter his sister filed a petition for the appointment of an administrator. Later a controversy arose about who had the right to designate the appointment of such fiduciary. This controversy reached the district court where it was determined Lee Goldsberry was the son of the deceased and had the right to be appointed or suggest the appointment of the administrator. As a result Harry E. Lanning was duly appointed and qualified as administrator of the estate. Other facts alleged in the petition are to the effect that in April, 1947, Walter S. Goldsberry purchased the involved property and paid for it with his own money but was induced by the defendant, Claude Eugene Goldsberry, his brother, to let the title be taken in the name of the latter who, at the same time, executed a deed to Walter S. Goldsberry, blank as to grantee, with authority to fill in his own name or the name of any other person as grantee. The deed from the vendor to the defendant was recorded in November, 1947. The petition further states that the defendant had charge of his brother's papers after the latter's death and that when the present administrator was appointed the deed which defendant had executed in blank and delivered to such decedent could not be and has never been found because he had either destroyed or concealed it. The petition contains other allegations which tend to show that Walter S. Goldsberry was an aged man who for more than a year prior to his death had been in poor health and that defendant, through his confidential relations with his brother and the exercise of undue influence, wrongfully succeeded in getting the title to the involved property in his name without consideration.
The defendant contested the claims made in the petition by an answer and cross-petition. The answer denied generally each and all of the allegations of the petition. The cross-petition alleged defendant was the actual legal owner in fee simple of the real estate in question; that he held the legal and record title to such property and was in the possession thereof; that without right plaintiff was making a claim thereto which created a cloud upon his title; and then prayed that the court ascertain and determine the title to the real estate as between the parties and render judgment divesting plaintiff of any right, title, or interest therein.
Plaintiff's response to defendant's answer and cross-petition was a reply and answer. This pleading was in unusual form and is of such importance to a determination of the appellate issue involved we deem it necessary to quote it in full in order that there may be no room for speculation or misunderstanding respecting its contents. Omitting the caption and signatures of attorneys it reads:
'Comes now the plaintiff above named and for his Reply to the Answer of the defendant filed herein makes a part of this Reply the testimony of the defendant, Claude Eugene Goldsberry, taken under oath before the Hon. Clifford W. Baldwin, Judge of the Probate Court of Nemaha County, Kansas, on the 5th day of July, 1950, pertaining to the property involved in this action, and by reason of the statements, allegations, denials and admissions therein contained prays that said defendant be estopped to claim title in himself or the absence of title in the plaintiff.
'Wherefore, plaintiff renews the prayer of his Petition.
'Comes now the plaintiff above named and for his Answer to the Cross-Petition of the defendant filed herein makes all the statements, allegations and denials of his Reply a part of this his Answer; and further, denies each and every statement, allegation and denial contained in said Cross-Petition.
'Wherefore, Plaintiff prays that the defendant take nothing by his Cross-Petition and plaintiff renews the prayer of his Petition.'
Shortly after plaintiff had filed the foregoing reply and answer the defendant filed a motion for judgment on the pleadings which so clearly discloses the question raised and ruled on in the court below that it should also be quoted at length. It reads:
'Defendant moves the court for an order for the entry of judgment in his favor for the reason that the reply of the plaintiff, by making the recorded testimony of the defendant before the Probate Court of Nemaha County, Kansas, a part of plaintiff's pleading, removes any issue for trial and any cause of action by plaintiff against defendant as set out in his petition, in this to-wit:
'1. That testimony of the defendant made part of plaintiff's pleadings,...
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Kerschen's Estate, In re
...in Sheen v. State Highway Commission, 173 Kan. 491, 249 P.2d 934, at page 494, and referred to with approval in Lanning v. Goldsberry, 173 Kan. 654, 250 P.2d 812, at page 658. In 71 C.J.S., Pleading, § 92, it is said: 'Good practice requires the plaintiff's initial pleading to proceed on a ......
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...issues of fact drawn by the pleadings of the parties and assume that the allegations of the answer of the appellants are true (Lanning v. Goldsberry, 173 Kan. 654, syl. p2,250 P.2d 812 and authorities Thus the question narrows down to the sufficiency of the answer in stating appellants' cla......