Marchant v. Layton
| Decision Date | 03 July 1952 |
| Docket Number | No. 38697,38697 |
| Citation | 173 Kan. 341,245 P.2d 973 |
| Parties | MARCHANT et al. v. LAYTON. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
The answer, to an action for cancellation of an oil and gas lease and for damages for improper operation of the leasehold estate and for other relief, contained a general denial and, among other things, a separate paragraph in which defendant alleged affirmative acts of plaintiffs as constituting a defense to each ground for relief stated in the petition, examined in relation to (a) defendant's motion to strike such separate paragraph and (b) defendant's 'Special Demurrer' to such separate paragraph, and held: (1) The order overruling the motion is not an appealable order; and (2) it did not constitute error to overrule the demurrer under the circumstances stated in the opinion.
James A. Brady, of Cherryvale, argued the cause and was on the briefs for the appellants.
Walter L. McVey, of Independence, argued the cause, and Laurence McVey and Walter L. McVey, Jr., both of Independence, were with him on the briefs, for the appellee.
This was an action in which landowners in their first cause of action sought to obtain cancellation of an oil and gas lease and judgment quieting their title by reason of alleged failure to develop the lease in harmony with implied covenants to develop, for waste and failure to use reasonable diligence in the operation of the lease, for an injunction to prevent alleged waste and for an accounting of oil and gas removed from the land.
In the second cause of action plaintiffs sought damages for alleged wrongful removal of water from the lease premises and for loss of gas and oil due to alleged improper operation of the lease.
The defendant owner of the lease filed an answer containing a general denial of all allegations of the last amended petition except as to allegations expressly admitted. None of the allegations of the petition material to plaintiffs' recovery was admitted. In paragraph five of the amended answer defendant also alleged affirmative acts of the plaintiffs calculated to disclose acquiescence in and approval of various acts on which plaintiffs relied for the relief sought. The action has not been tried.
We shall continue to refer to the parties as plaintiffs and defendant. Plaintiffs first specify as error the trial court's refusal to strike paragraph five of defendant's answer. The grounds of that motion are not set forth in the abstract and the ruling thereon is not included in the notice of appeal. The ruling is, therefore, not properly here for review. Moreover, a ruling on a motion to strike ordinarily is not appealable. In view of the facts stated we obviously cannot consider the first specification of error.
Plaintiffs next assert the court erred in overruling their 'Special Demurrer' to the same paragraph of the answer. Defendant contends the demurrer likewise was tantamount to a motion to strike as it sought to separate paragraph five of the answer from the other...
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Sims' Estate, In re
...P.2d 159; Krey v. Schmidt, 170 Kan. 86, 223 P.2d 1015; Sheahan v. Kansas Power & Light Co., 172 Kan. 399, 241 P.2d 515; Marchant v. Layton, 173 Kan. 341, 245 P.2d 973; Vogt v. Drillers Gas Co., 178 Kan. 146, 283 P.2d 442; City of McPherson v. Smrha, 179 Kan. 59, 293 P.2d 239; Boettcher v. C......
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Sherk's Estate, In re
...P.2d 159; Krey v. Schmidt, 170 Kan. 86, 223 P.2d 1015; Sheahan v. Kansas Power & Light Co., 172 Kan. 399, 241 P.2d 515; Marchant v. Layton, 173 Kan. 341, 245 P.2d 973; Vogt v. Drillers Gas Co., 178 Kan. 146, 283 P.2d 442; City of McPherson v. Smrha, 179 Kan. 59, 293 P.2d 239; Boettcher v. C......
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Nausley v. Nausley, 40538
...Shepard v. Klein, 172 Kan. 250, 239 P.2d 930; Moffet v. Kansas City Fire & Marine Ins. Co., 173 Kan. 52, 244 P.2d 228; Marchant v. Layton, 173 Kan. 341, 245 P.2d 973; Meek v. Ames, 175 Kan. 564, 266 P.2d 270; Boettcher v. Criscione, 180 Kan. 39, 299 P.2d Reference to West's Kansas Digest, A......
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Meek v. Ames
...Enyart, 161 Kan. 337, 168 P.2d 89; Krey v. Schmidt, 170 Kan. 86, 223 P.2d 1015. For other decisions of like import see Marchant v. Layton, 173 Kan. 341, 342, 245 P.2d 973; Moffet v. Kansas City Fire & Marine Ins. Co., 173 Kan. 52, 55, 244 P.2d 228; Shepard v. Klein, 172 Kan. 250, 251, 239 P......