Marshall v. Bailey
| Decision Date | 07 July 1958 |
| Docket Number | No. 40904,40904 |
| Citation | 327 P.2d 1034,183 Kan. 310 |
| Parties | Ira M. MARSHALL, Appellee, v. Patricia Ann BAILEY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record in an action to cancel a warranty deed; for an accounting between the parties, and for possession of certain personal property examined and held: (1) there being no motion for a new trial filed in the district court, trial errors are not open to appellate review; (2) the district court did not err in overruling the defendant's demurrer to plaintiff's evidence, and (3) the pleadings and findings of the district court supported the judgment entered in plaintiff's behalf.
Stanley R. Roose, Topeka, argued the cause, and Milford M. Magee, Topeka, was with him on the briefs for appellant.
Robert R. Jones, Topeka, argued the cause, and Clarence J. Malone and William R. Brady, Topeka, were with him on the briefs for appellee.
This was an action to cancel a warranty deed; for an accounting between the parties, and for possession of certain personal property. Trial was by the district court which found generally for the plaintiff, and the defendant has appealed.
The plaintiff is a widower over 65 years of age; the defendant is a married woman in her late twenties, and both reside in Topeka.
Plaintiff's petition was in three causes of action. The first was to set aside a deed to real estate located at 1413 Randolph, Topeka, which plaintiff conveyed to defendant as security for an advancement of cash to enable him to settle two lawsuits pending against him; the second was to recover possession of a diamond ring plaintiff had left with defendant for safekeeping upon her promise to return it upon request, and the third was to recover possession of an electric vacuum cleaner and an Ironrite ironer plaintiff purchased and which defendant persuaded him to have delivered to her residence for her use upon her promise to return them whenever he requested.
In her answer and cross-petition defendant admitted plaintiff conveyed the real estate to her and alleged she paid $6,000 in cash as consideration therefor. Her answer also admitted plaintiff purchased the two electrical appliances, but alleged they were given to her in satisfaction of a pre-existing debt for meals which she had furnished the plaintiff. Her cross-petition contained three causes of action. The first was for meals she had served plaintiff at an agreed price of $1 per meal between July 15, 1955 and June 6, 1956, totaling in the sum of $261, the second was to recover on a promissory note plaintiff had executed and delivered to her on May 15, 1956, in the sum of $350, with interest thereon from date at five percent per annum. The third was to recover the reasonable rental value of the Randolph Street property from July 25, 1956 to March 25, 1957, at $85 per month for eight months, totaling $680. Plaintiff's reply and answer denied all the allegations of the defendant's answer and cross-petition.
With the issues thus formed, the district court found that the deed given by the plaintiff to the defendant was not an absolute conveyance but was intended only as security for the repayment of such advances as the defendant would pay to the plaintiff; that the defendant made one advancement on May 15, 1956, in the sum of $350; that the deed should be set aside as an absolute conveyance and title to the real estate be declared to be vested in the plaintiff free and clear of any right, title or interest of the defendant except that the plaintiff repay to defendant the amount of the advancement with interest; that the defendant be declared to have a lien against the real estate in the amount of $350 to be subject to foreclosure by the defendant in the event plaintiff failed to make repayment; that the defendant be ordered to return to the plaintiff the diamond ring, the electric sweeper and the Ironrite ironer, and that until those articles were returned, plaintiff was not required to repay the $350.
On May 15, 1957, judgment was rendered in harmony with those findings. The appeal is from that judgment. No motion for a new trial was filed and defendant's specification of error is quoted in full:
'The evidence in this action was insufficient to support judgment cancelling defendant's deed and giving plaintiff possession of diamond ring, vacuum cleaner and ironer and in denying defendant's Cross Petition, wherein defendant sought recovery of value of meals supplied plaintiff, or in the alternative, for possession of two household appliances.'
Pursuant to G.S.1949, 60-3310 this court permitted the defendant to amend her notice of appeal to include orders overruling (1) her motion for judgment on the pleadings; (2) her motion for judgment on plaintiff's opening statement, and (3) her demurrer to plaintiff's evidence. Upon application, the defendant was permitted to amend her specifications of error to include that the district court erred in overruling (1) her motion for judgment on plaintiff's opening statement, and (2) her demurrer to plaintiff's evidence; also, that the pleadings and the undisputed facts were insufficient to sustain the judgment.
With the exception of the correctness of the ruling on defendant's demurrer to plaintiff's evidence, the specifications of error are directed to trial errors and the insufficiency of plaintiff's evidence to support the judgment. Thus, appellate review of the record is limited to the question of whether the judgment is supported by the findings and the pleadings (Benson v. Rosebaugh, 128 Kan. 357, 278 P. 41; Lake Superior Lumber Co. v. Homestead Bldg. & Loan Ass'n, 139 Kan. 565, 32 P.2d 202; Jelinek v. Jelinek, 161 Kan. 362, 168 P.2d 547; Jeffers v. Jeffers, 181 Kan. 515, 313 P.2d 233), and whether the district court erred in overruling defendant's demurrer to plaintiff's evidence. It has been decided many times that in the absence of a motion for a new trial, trial errors are not open to appellate review. These include rulings of the district court on dilatory pleas, orders setting the cause for trial, denial of additional time to plead, the overruling of a motion for judgment on counsel's opening statement, the admission or exclusion of evidence, the sufficiency of evidence to support the judgment, the erroneous instructions to the jury, misconduct of court or counsel, and general miscellaneous irregularities of procedure and practice for which new trials may be granted on timely motion of a defeated litigant (Morgan v. Morgan...
To continue reading
Request your trial
-
Andrews v. Hand
...is required to be filed calling the district court's attention to those specific matters, and the motion be overruled (Marshall v. Bailey, 183 Kan. 310, 327 P.2d 1034; State v. Hickock & Smith, 188 Kan. 473, 363 P.2d 541). In the absence of such a motion, alleged trial errors are not open t......
-
Ford v. Sewell
...See, e. g., Reger v. Sours, 181 Kan. 423, 424, 311 P.2d 996; Jeffers v. Jeffers, 181 Kan. 515, 518, 313 P.2d 233; Marshall v. Bailey, 183 Kan. 310, 312, 327 P.2d 1034; Shelton v. Simpson, 184 Kan. 270, 336 P.2d 159; Green v. State Highway Commission, 184 Kan. 525, 337 P.2d 657, and has care......
-
Drake v. Moore
...so considered, there is any evidence which sustains plaintiff's case on any theory, the demurrer should be overruled. Marshall v. Bailey, 183 Kan. 310, 314, 327 P.2d 1034; Kendrick v. Atchison, T. & S. F. Rld. Co., 182 Kan. 249, 320 P.2d 1061; Jones v. Coate, 180 Kan. 597, 306 P.2d 148; and......
-
Ingram v. Ingram
...as such in accordance with the actual agreement of the parties. (Berger v. Bierschbach, 201 Kan. 740, 443 P.2d 186; Marshall v. Bailey, 183 Kan. 310, 327 P.2d 1034; Hess v. Hess, 164 Kan. 139, 187 P.2d 383.) Since the assignment of the Solbach lease was recorded it imported constructive not......