Miller v. Sunflower Recreation Soc.

• Court: Kansas Supreme Court
• Writing for the Court: ALLEN, Justice.
• Citation: Miller v. Sunflower Recreation Soc., 101 P.2d 891, 151 Kan. 930 (Kan. 1940)
• Decision Date: 04 May 1940
• Docket Number: 34716.
• Parties: MILLER et al. v. SUNFLOWER RECREATION SOC.

101 P.2d 891

151 Kan. 930

MILLER et al. v. SUNFLOWER RECREATION SOC.

No. 34716.

Supreme Court of Kansas

May 4, 1940

Rehearing Denied June 14, 1940.

Syllabus by the Court.

An order overruling a motion for judgment on the pleadings is an "appealable order" only where it can be said on the record that the motion concedes the facts well pleaded by the opposing party, and is thus equivalent to a demurrer. Gen.St.1935, 60-3302, 60-3303.

An order overruling a motion for judgment on the pleadings after a demurrer, which raised the same question of law, had previously been overruled without an appeal having been perfected, was not a "final order" from which an appeal would lie within meaning of statute. Gen.St.1935 60-3302, 60-3309.

1. An appeal may be taken from an order overruling a motion for judgment on the pleadings only where it can be said on the record that the motion concedes the facts well pleaded by the opposing party, and is thus equivalent to a demurrer. G.S.1935, 60-3302, subds. 1-3; 60-3303.

2. An order overruling a motion for judgment on the pleadings after a demurrer, which raised the same question of law, had previously been overruled, and no timely appeal therefrom had been perfected, was not a "final order" from which an appeal would lie within meaning of statute. G.S.1935 60-3302, subds. 1-3; 60-3309.

Appeal from District Court, Pawnee County; Lorin T. Peters, Judge.

Action by George E. Miller, William Sites, and Dave Showalter, for themselves and as trustees of and for Hector Lodge No. 31 Knights of Pythias, against the Sunflower Recreation Society to set aside a deed on ground of fraud. From an order and ruling denying defendant's motion for judgment on the pleadings, the defendant appeals, and the plaintiffs move to dismiss the appeal.

Appeal dismissed.

W. H. Vernon and Vincent G. Fleming, both of Larned, for appellant.

George W. Finney, Maurice A. Wildgen, and Blaine Roberts, all of Larned, for appellees.

ALLEN Justice.

This action was to set aside a deed on the ground of fraud. The original petition was filed March 27, 1937. A demurrer to the petition was sustained.

Thereafter divers motions and demurrers were leveled at the first, second and third amended petitions filed by plaintiffs. Details are not here important.

On September 6, 1938, the fourth amended petition was filed. Seven separate causes of action were pleaded. A demurrer to the fourth amended petition was overruled on January 23, 1939. No appeal was taken from the order overruling the demurrer.

On May 5, 1939, defendant filed an answer. The answer admitted certain facts alleged in the petition, denied others, and alleged various facts in answer to the separate causes of action in the petition. On August 31, 1939, plaintiffs filed a reply.

Thereupon the defendant filed a motion for judgment on the pleadings. On November 6, 1939, this motion was denied. This appeal is from the order and ruling of the court overruling defendant's motion for judgment on the pleadings.

Plaintiff...