Ondrasek v. Ondrasek

• Decision Date: 08 December 1951
• Docket Number: No. 38460,38460
• Citation: 238 P.2d 535,172 Kan. 100
• Parties: ONDRASEK et al. v. ONDRASEK et ux.
• Court: Kansas Supreme Court

Page 535

238 P.2d 535

172 Kan. 100

ONDRASEK et al. v. ONDRASEK et ux.

No. 38460.

Supreme Court of Kansas.

Dec. 8, 1951.

Syllabus by the Court.

1. Under the provisions of our code of civil procedure a plaintiff may unite several causes of action in the same petition, whether they be such as have been heretofore denominated legal or equitable, or both. The causes of action so united, however, must affect all the parties to the action, except in actions to enforce mortgages or other liens.

2. In order to make actions inconsistent one must allege what the other denies, or the allegations in one must necessarily repudiate or be repugnant to the other.

3. It is the inconsistency of demands, that is of the relief sought, which makes the election of one remedial right an estoppel against the assertion of the other, and not the fact that the forms of action are different.

4. 'It is a familiar rule of pleading that when the plaintiff has two or more distinct reasons for obtaining the relief sought, or when there is more or less uncertainty as to the grounds of recovery or as to the exigencies of proof, the petition may set forth a single claim in more than one count. The pleader may state his case in as many ways as he sees fit in separate counts in order to meet any possible phase of the evidence, and he will not be required to elect on which count he will proceed.'

5. A petition and an amendment thereto examined, considered and held, defendants' motion to strike the amendment on the ground it was inconsistent with the cause of action previously alleged in the petition was improperly sustained.

Stanley Krysl, of Stockton, argued the cause, and W. L. Sayers, of Hill City, and D. A. Hindman, of Stockton, were with him on the briefs for appellants.

W. McCaslin, of Stockton, argued the cause, and H. McCaslin, of Osborne, was with him on the briefs for appellees.

WEDELL, Justice.

This is an appeal by plaintiffs from an order striking an amendment to a petition.

The action was one by adult children of John Ondrasek and Anna Ondrasek, his wife, both parents being deceased, against one son, John Ondrasek and Anna, his wife, to have the rights of the parties in and to real and personal property established, to obtain an accounting and for a division of the property in accordance with their respective rights therein.

There was no challenge of the sufficiency of the original petition or of the amendment by demurrer or otherwise. For purposes of this appeal it is unnecessary to narrate at length the allegations of the original petition or the amendment thereto. It will be sufficient to state only the general character and nature of each pleading in order to determine whether the amendment was properly stricken.

The original petition insofar as here material, in substance, alleged:

The purchase of three quarter sections of land by the father prior to his death in 1924 and of the fourth and last quarter in 1936 before the mother's death; the first three quarters were purchased with funds of the father, a deed to one of these quarter sections being taken in the name of the defendant, John Ondrasek, who aided his father in connection with the purchase thereof; the fourth and last deed to another quarter section was acquired from proceeds of the farming operations which were conducted by the defendant, John Ondrasek; this deed was taken in the name of John Ondrasek; that the father's name and the defendant son's name were the same, to wit, John Ondrasek; that the son, John Ondrasek, held the land and the proceeds from the sale in 1930 of the farming machinery and livestock, except $1000 thereof which was then given to the mother, in trust for all the children; he should be compensated for his services in the operation and management of the lands and if the property could not be divided in kind it should be sold and the proceeds thereof divided in accordance with their interests.

The amendment, in effect, alleged the title to the two quarter sections conveyed to the father as grantee during his lifetime remained in him until his death; that thereafter title to an equal undivided one half interest passed to the mother and the other one half interest to the six children, plaintiffs and the defendant son, share and share alike; after the mother's death the entire interest in the lands passed to the six children share and share alike under the law of descents and distributions.

The amendment further alleged if it be determined title did not so descend as to those two quarter sections it should be held in the alternative that the defendant, John Ondrasek, was holding the title thereto in trust as set forth in the original petition.

Defendants' motion to strike the amendment was sustained. From that ruling plaintiffs appeal. We shall continue to refer to the parties as plaintiffs and defendants.

Defendants's motion to strike the amendment referred in part to a previous action covering the two quarter sections involved in the amendment. That part of the motion to strike was on the ground the previous case constituted an adjudication of the issue presented by the amendment. The previous action was dismissed without prejudice and that part of the motion to strike is without merit.

The substance of the remainder of the motion to strike was the amendment constituted a departure from the cause of action set forth in the instant original petition and the proof of allegations contained in the amendment would disprove the allegations of the original petition.

Although the motion is quite clear the briefs of counsel indicate some confusion of thought with respect to the precise question presented by defendants' motion. In order to eliminate such confusion and a discussion of contentions not properly within the purview of the motion it may be well to state at the outset that this particular motion is not one which is tantamount to a demurrer which challenges the sufficiency of either pleading to sttae grounds for the relief plaintiffs seek. Nor is this motion based upon the ground these pleadings, or either of them, are...