Meek v. Ames

• Decision Date: 23 January 1954
• Docket Number: No. 39131,39131
• Citation: Meek v. Ames, 266 P.2d 270, 175 Kan. 564 (Kan. 1954)
• Parties: MEEK et al. v. AMES et al.
• Court: Kansas Supreme Court

Page 270

266 P.2d 270

175 Kan. 564

MEEK et al. v.AMES et al.

No. 39131.

Supreme Court of Kansas.

Jan. 23, 1954.

Syllabus by the Court.

1.Rulings on motions to strike, regardless whether such motions have been sustained or overruled, rest in the sound discretion of the trial court and are not appealable unless they affect a substantial right and in effect determine the action.

2.Ordinarily it is neither necessary nor proper for a petition to anticipate a defense or allege a denial or avoidance of some of the facts which may be set up in an answer as a defense to a plaintiff's cause of action.

3.Plaintiffs' complaint concerning the sustaining of defendants' motion to strike certain allegations from their amended petition examined, and held, to present no appealable order.

Roy S. Lowe and George A. Lowe, Olathe, argued the cause, and Roy Goins Lowe, Olathe, was with them on the briefs, for appellants.

Howard E. Payne, Olathe, argued the cause, and G. A. Roberds, Olathe, was with him on the briefs, for appellee, Earl Ames.

PARKER, Justice.

In this action the trial court sustained motions to strike certain allegations from the plaintiffs' petition and from their amended petition.The appeal is from those rulings.

The facts necessary to a proper understanding of the fundamental issues involved cannot be disputed.As gleaned from allegations of the amended petition in its present form they may be stated thus:

Benjamin Reeder, a resident of Johnson County, Kansas, died testate on June 12, 1914, leaving his wife, Diana, who died October 10, 1928, and four daughters, namely; May Meek, Mary Jane Hughes, Eva Powell, and Maud Reeder, who subsequently married Earl Ames.

The action involves only the property devised by the testator to Maud Reeder Ames and her children.Therefore, except to note that under identical language the testator's other daughters and their children were willed a like quantity of real estate, it can be stated that the only portion of the will with which we are concerned are clauses affecting the daughter last above named which read:

'4th.I give and devise to my daughter Maude Reed(sic) the Northeast quarter of Section twenty-nine (29), and the Southeast quarter of Section twenty-nine (29), all in Town Fourteen (14), Range Twenty-four (24) in Johnson County, Kansas, for the term of her natural life, only, but the last above described quarter section of land shall be taken by her subject to the life use of my wife, Diana S. Reeder and at the death of my said daughter, Maud Reeder, all the land described in this clause No. 4 shall go to and be the absolute property of her children.

'5.If at the time of the death of any of my said daughters she shall have no children living, then the estate so willed to her shall be equally divided between my other daughters, and if either of my said daughters shall have died theretofore, then the portion so willed to the deceased daughter shall go to her children in fee simple.'

Some time after the death of their father, Maud Reeder Ames and her three sisters took possession of the two quarter sections of land devised to each of them under the terms of his will.Subsequently, and probably after their mother's death although the exact date is not important, Eva Powell died leaving no children and Mary Jane Hughes died leaving children and grandchildren, who were the children of her deceased children.

Maud Reeder Ames died on May 10, 1951, leaving no issue but claiming to have an adopted child, namely, Mary Jane Jeffress Ames, under and by virtue of an adoption decree rendered by the probate court of Johnson County, Kansas, on September 7, 1937, pursuant to adoption proceedings theretofore instituted in that court.

In 1939, about two years after the date of the adoption decree the child therein named, who in the meantime had become of age, deeded the major portion of the involved real estate to Earl Ames.Some eight days after the death of Maud Reeder Amesshe executed another deed wherein she purported to convey all of such real estate to the same grantee.

Following the death of Mrs. Ames, May Reeder Meek, the only surviving daughter of Benjamin Reeder and the children and grandchildren of Mary Jane Hughes, who are the plaintiffs in this action, made demand, under claim of ownership, on Earl Ames, the child named in the adoption decree (Mary Jane Jeffress Ames), and the mother of such child (Claribel Jeffress), for possession of the involved real estate.When this demand was refused plaintiffs instituted the instant action against the three persons last above mentioned for its recovery and possession, on the theory Mrs. Ames had no children living on the date of her death and that therefore, as the remaining living daughter and children of deceased daughters of Benjamin Reeder, they were the owners of such property under and by virtue of the terms and conditions of his last will and testament.

Nothing would be gained at the moment by extended reference to the pleadings or the motions attacking them.For present purposes all that need be said is that the order sustaining the motion to strike certain allegations from the petition was made on April 21, 1952; that the order sustaining the motion to strike portions of the amended petition was made on March 3, 1953; and that the appeal from those rulings was perfected on March 26, 1953.

Before any consideration can be given to the merits of the appeal we are required to dispose of contentions advanced by appellees to the effect the rulings complained of are not subject to appellate review, hence the appeal must be dismissed.

In the main the first of these contentions is predicated upon the proposition the appeal from the ruling on the motion attacking the petition was not taken for almost a year after the order with respect thereto was entered and for that reason is too late.This contention would have merit if it were not for our statute, G.S.1951 Supp. 60-3314a, providing that when an appeal has been timely perfected...