New v. Smith

• Decision Date: 10 March 1906
• Docket Number: 14,306
• Citation: 73 Kan. 174,84 P. 1030
• Parties: EMELIA NEW, AND ROBERT H. CLOGSTON, as Trustee of Emelia New, a Convict, Plaintiffs, v. J. A. SMITH et al
• Court: Kansas Supreme Court

84 P. 1030

73 Kan. 174

EMELIA NEW, AND ROBERT H. CLOGSTON, as Trustee of Emelia New, a Convict, Plaintiffs, v. J. A. SMITH et al

No. 14,306

Supreme Court of Kansas

March 10, 1906

Decided January, 1906.

Error from Greenwood district court; GRANVILLE P. AIKMAN, judge.

Judgment reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PARTIES--Action to Recover Convict's Estate--Trustee. An action for the recovery of property belonging to a convict under sentence and imprisonment for a term less than life can only be maintained by a trustee.

2. PARTIES--Improper Joinder -- Demurrer -- Surplusage. Where such an action is brought in the name of the trustee, and the petition states a cause of action in his behalf, the convict being also named as a party plaintiff, the allegations with reference to the convict's right to join as a plaintiff should be treated on demurrer as mere surplusage.

3. PETITION -- Duplicity -- Motion to Separate and Number. When a petition sets up a cause of action in ejectment and another for rents and profits, a motion separately to state and number the two causes of action should be allowed.

John Stowell, and Robert H. Clogston, for plaintiffs in error.

Rossington & Smith, and Samuel Barnum, for defendants in error.

PORTER J. All the Justices concurring.

OPINION

PORTER, J.

This is a proceeding in error from a judgment sustaining a demurrer to a petition in which is also involved a ruling of the court requiring plaintiffs separately to state and number the different causes of action stated in the petition. The motion was allowed to the original petition, and the demurrer sustained to the amended petition. The subject-matter of the controversy in this action has been before the court in Smith v. Becker, 62 Kan. 541, 64 P. 70, 53 L.R.A. 141, and New v. Smith, 68 Kan. 807, 74 P. 610. The original petition reads as follows:

"In the District Court of Greenwood County, Kansas.

"EMELIA NEW, and ROBERT H. CLOGSTON, as Trustee of Emelia

New, a Convict, Plaintiffs, v. J. A. SMITH and H. M. BROWN, Defendants.

"PETITION.

"The plaintiff Emelia New is now and has been a convict in the state penitentiary, at Lansing, Kan., since the 25th day of January, 1898, having been sentenced on the 24th day of January, 1898, by the district court of Greenwood county, Kansas, for her natural life, upon a verdict of being accessory to the murder of her husband, Joseph New, who was shot and instantly killed on the evening of October 31, 1897. That afterward, and on the 7th day of January, 1899, the Honorable J. W. Leedy, then governor of this state, commuted her sentence to forty years, in lieu of for her natural life,' and the plaintiff Robert H. Clogston is her duly appointed, qualified and acting trustee of her estate, having been appointed by the probate court of Greenwood county, Kansas, on the 2d day of April, 1901.

"Plaintiffs further aver that they have the legal estate and the equitable estate in and to the following-described real estate, to wit: The west-half of the southeast quarter of section fourteen (14), township twenty-seven (27), range nine (9), also the southwest quarter of section fourteen (14), township twenty-seven (27), range nine (9), the same being 240 acres, situated in Greenwood county, Kansas, and are entitled to the immediate possession of the same; and the defendants unlawfully keep plaintiffs out of the possession of the same.

"Plaintiffs further state that the said defendant J. A. Smith has so unlawfully kept plaintiffs out of said possession for the past three years, and collected and used for their [defendants'] own benefit during said time the rents and profits arising from said real estate, amounting to $ 1200.

"Wherefore, plaintiffs pray judgment for the possession of said premises, and for the sum of $ 1200 for rents and profits, and for costs and all other proper relief.

EMELIA NEW, By ROBERT H. CLOGSTON, her Trustee.

JOHN STOWELL and ROBERT H. CLOGSTON, Attorneys for Plaintiffs.

"ROBERT H. CLOGSTON, Trustee."

The first error complained of is the ruling requiring that the two causes of action be separately stated and numbered. Counsel have argued at some length a question not at all involved, which is, that it is proper to unite in the same action a cause of action for ejectment and one for rents and profits. This is, of course, not denied by any one, but the motion which the court very properly allowed was not directed against the joining of the two causes of action. It was based upon the failure of the pleader separately to state and number them. Section 88 of the code of civil procedure (Gen. Stat. 1901, § 4522) reads as follows: "Where the petition contains more than one cause of action, each shall be separately stated and numbered. " It has been held error for the court not to allow a motion of this kind. (Pierce v. Bicknell, 11 Kan. 262.)

The amended petition is the same as the original in all respects, except that the cause of action for rents and profits is omitted. The demurrer which the court sustained contains six grounds, stated as follow:

"(1) That the plaintiff Emelia New has no legal capacity to sue.

"(2) That the plaintiff Robert H. Clogston, as trustee of Emelia New, has no legal capacity to sue.

"(3) That several causes of action are improperly joined.

"(4) That the amended petition does not state facts sufficient to constitute a cause of action in favor of the plaintiffs and against these defendants.

"(5) That the amended petition does not state facts sufficient to constitute a cause of action in favor of Emelia New and against these defendants.

"(6) That the amended petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff Robert H. Clogston, trustee of Emelia New, a convict, and against these defendants....