Moeller v. Moeller
| Decision Date | 06 March 1954 |
| Docket Number | No. 39234,39234 |
| Citation | 267 P.2d 536,175 Kan. 848 |
| Parties | MOELLER v. MOELLER. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Where a petition is filed within the period of the statute of limitations which states a cause of action, an amended petition filed by leave of court after the period of the statute of limitations has run which does no more than to amplify the facts stated in the original petition and which does not attempt to state a new cause of action, relates back to the first petition and is not barred by the statute of limitations.
2. Examining the petition, the amended petition, and the second amended petition in an action to set aside a decree in a divorce case predicated on G.S.1949, 60-3007, fourth clause, brought within the time authorized by 60-3008 and in the manner authorized by 60-3011, it is held: The amended petition and the second amended petition presented no new cause of action but simply enlarged the averments of the original petition, and that the second amended petition was filed in time.
Howard E. Payne, Olathe, argued the cause and was on the briefs for appellant.
John Anderson, Jr., Olathe, argued the cause and G. A. Roberds, Olathe, was with him on the briefs for appellee.
This was an action to set aside a decree in a divorce case. It is predicated on that portion of G.S.1949, 60-3007, fourth clause, which reads:
It was brought within the time authorized by 60-3008, and in the manner authorized by 60-3011. The appeal is by defendant from the order of the trial court overruling his demurrer to plaintiff's second amended petition.
The decree sought to be set aside was dated October 24, 1950, in an action in which George F. Moeller (defendant here) was plaintiff and Mildred H. Moeller (plaintiff here) was defendant in case No. 18,478 in the district court of Johnson county. That decree disclosed that the plaintiff had withdrawn his petition in that case; that the defendant had filed an answer which contained a general denial of all the allegations of misconduct charged against her in the petition with a prayer that plaintiff take nothing and asked for no affirmative relief. She had also filed a cross-petition principally devoted to allegations respecting the property of the parties, the values placed thereon being in excess of $160,000 but which contained no prayer for relief of any kind. No reply had been filed thereto. The decree granted a divorce to the defendant (plaintiff in this action) and required plaintiff to pay defendant $20,000 and gave to him all the remainder of the property.
Th first petition filed in this case, No. 19,129, in the district court was filed on August 29, 1951. To this petition the defendant filed a motion to make it definite and certain in several particulars. This motion was sustained in part as a result of which the plaintiff filed an amended petition on December 4, 1951. On January 24, 1952, the plaintiff filed a demurrer thereto. This was heard by the court on December 17, 1952, and taken under advisement and on January 9, 1953, the demurrer was sustained, the court used the following language:
'* * * The court having heard the arguments of counsel and having examined the authorities cited, and being well and fully advised in the premises finds that defendant's demurrer to plaintiff's first amended petition should be and the same is by the court sustained.
'The court further finds that the plaintiff herein shall be allowed ten days from the 9th day of January, 1953, in which to file her second amended petition.'
On January 14, 1953, which the time allowed by the court, the plaintiff filed her second amended petition. On January 16, 1953, the defendant filed his demurrer and motion to strike the second amended petition upon the grounds: 1, that the court had no jurisdiction of the subject matter of the action; 2, that the plaintiff had no legal capacity to sue; and 3, that plaintiff's second amended petition failed to state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant. This demurrer and motion to strike was presented to the court on May 5, 1953, and taken under advisement. On June 29, 1953, the court made an order overruling defendant's demurrer and motion to strike plaintiff's second amended petition. The appeal is from that order.
In appellant's abstract the specification of errors read:
In appellant's brief the question involved is stated as follows:
'Appellant brings here to this court for review, the correctness of the lower court's ruling in overruling appellant's demurrer and motion to strike appellee's second amended petition.'
It is to be noted the specification of errors do no more than state that the court erred in its ruling. This is substantially restated in the brief. We have frequently held that statements by appellant such as the above do not state any legal questions for our review. See Lambeth v. Bogart, 155 Kan. 413, at page 415, 125 P.2d 377, at page 379, and cases cited.
However, ignoring that, counsel for appellee state the questions involved as follows:
'* * *, the issues are: (a) whether an amended pleading filed within time allowed by the court after sustaining a demurrer is barred by the statute of limitations where the amended pleading does not constitute a departure from the cause of action set forth in the former pleading, (b) whether the allegations of the second amended petition plead extrinsic fraud and a fraud upon the trial court rather than intrinsic fraud, and (c) whether the appellee has proper status as plaintiff in such an extrinsic fraud action to vacate a judgment.'
In this court the appellant stresses the statute of limitations and points out that the decree sought to be vacated was rendered by the trial court on October 24, 1950, and that appellee's second amended petition was filed January 14, 1953. He also calls attention to our statute G.S.1949, 60-3008, hereinbefore mentioned, that an action such as this, '* * * must be commenced within two years after the judgment was rendered or order made * * *.' In support of this argument counsel cite Smith v. Veeder Supply Co., 137 Kan. 124, 19 P.2d 699, 700. In that case after the statute of limitations had run the plaintiff confessed a general demurrer which had been filed to his petition and later asked and obtained leave to file an amended petition more than six months after the statute of limitations had expired. A demurrer and motion to strike this amended petition was overruled; defendant appealed and the ruling was reversed. In the course of the opinion the court stated the rule to be as follows:
.
In Waddell v. Woods, 160 Kan. 481, 163 P.2d 348, 349, it was held:
'Where a previously-filed petition does not sufficiently allege any cause of action, and the applicable statutory period of limitation expires before an amended petition is filed, any cause of action alleged in the amended petition is barred by the statute of limitations.'
The opinion is specially thorough in its treatment of the question and its several phases and finally gets down to the question of examining the first petition which was filed within the period of the statute of limitations and the amended one which was filed later to determine whether these first petitions stated a cause of action and the second was only an enlargement of causes of actions so stated or whether the last petition states a new and different cause of action.
This doctrine has been restated in many of our cases; for example, in Springer v. Roberts, 151 Kan. 971, 101 P.2d 908, it was held:
'Amendments to a petition which amplify a cause of action imperfectly pleaded or which substitute a correct for an erroneous statement of facts relied on for recovery ordinarily relate back to the commencement of the proceeding, but where the amendment sets forth a new cause of action the statute of limitations continues to run until the amendment is filed.'
See also Smith v. LaForge, 170 Kan. 677, 228 P.2d 509; Maddox v. Neptune, 175 Kan. 465, 264 P.2d 1073; and, Hoffman v. Hill, Kan., 267 P.2d 526.
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