Miles v. Hamilton

• Decision Date: 08 May 1920
• Docket Number: 22,670
• Parties: CHARLES MILES and ANNA MILES, Appellants, v. J. A. HAMILTON, Appellee
• Court: Kansas Supreme Court

189 P. 926

106 Kan. 804

CHARLES MILES and ANNA MILES, Appellants, v. J. A. HAMILTON, Appellee

No. 22,670

Supreme Court of Kansas

May 8, 1920

Decided January, 1920.

Appeal from Butler district court; ALLISON T. AYRES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADINGS--Demurrer to Petition Sustained--Amended Petition Filed--Demurrer to Amended Petition--Matters Reviewable on Appeal. Where a demurrer to a petition is sustained and the plaintiff thereupon by leave of the court files an amended petition amplifying but not materially changing or adding to the original allegations, it cannot be successfully urged upon an appeal taken from an order sustaining a demurrer to the amended petition, that the ruling on the first demurrer because not appealed from, is conclusive upon the appellant as to the questions of law there involved; a sufficient reason for denying such contention is that the filing of the amended petition precluded an appeal from the order sustaining the first demurrer.

2. NOTE AND MORTGAGE--Default in Interest Payment--Entire Principal Becomes Due--Statute of Limitations Begins to Run. Where a real-estate mortgage given to secure a note provides that if default is made in an interest payment the principal shall at once become due, the statute of limitations begins to run immediately upon such default, and its operation is not suspended and the renewal thereof postponed to the date of the original maturity, or of a new default, by the subsequent payment of the interest and a part of the principal, even if accompanied by an agreement, not based on any other consideration, for an extension of the time of payment to the time stated in the note.

3. SAME--Certain Letters Not an Acknowledgment of Personal Liability to Pay Note. A letter written to the owner of a mortgage by one who has purchased the mortgaged realty and become personally liable upon the debt by assuming its payment, in which he indicates an intention to pay off the lien, does not amount to such an acknowledgment of personal liability as to afford a new starting point for the statute of limitations, although it concludes with the words: "I am going to make some kind of sale or deal . . . if it does lose me considerable, so I can meet your mortgage without much longer delay, hoping to do so before this may cause you more annoyance."

O. A. Keach, of Wichita, for the appellants.

A. L. L. Hamilton, and J. B. McKay, both of El Dorado, for the appellee.

OPINION MASON, J.:

On September 2, 1911, Charles Miles and Anna Miles executed to a bank a note and real-estate mortgage for $ 2,250, due in two years. Shortly afterwards they conveyed the land to a grantee who assumed the payment of the note and mortgage and later conveyed to J. A. Hamilton, who made a like assumption. Charles Miles and Anna Miles purchased the note and mortgage from the bank at the face value and on September 2, 1918, brought an action thereon against Hamilton, setting out these facts. A demurrer to their petition was sustained on the ground that its allegations showed the statute of limitations to have run. An amended petition was filed on February 1, 1919, to which a demurrer was likewise sustained on the same ground. The plaintiffs appeal from the latter ruling.

1. A preliminary question is raised by a contention of the defendant that as the plaintiffs did not appeal from the order sustaining the demurrer to the original petition and the time for such an appeal has expired, that ruling has become final and amounts to an adjudication that the facts relied upon by the plaintiffs as preventing the running of the statute, which were in substance set out in the first petition as well as in the second, do not have that effect. Of course no judgment was rendered upon the sustaining of the first demurrer. When that ruling was announced it was proper practice for the plaintiffs to take leave to amend, even if the purpose were merely to amplify or clarify the allegations already made. Having elected to file an amended petition, they could not appeal from the order sustaining a demurrer to the original pleading, for that had been superseded. (Robertson v. Christenson, 90 Kan. 555, 135 P. 567.) Their omission to do so, therefore, cannot have the effect of converting the ruling into a final adjudication against them on the legal propositions involved.

2. The dates already given show that the action was begun just within the five-year period following the date named in the note for its payment. The mortgage, however, provided that if any interest should not be paid when due the whole of the debt, principal and interest, should immediately become due and payable. By the terms of the note a...