People ex rel. Wilkinson v. Ettenson
| Decision Date | 08 April 1899 |
| Parties | PEOPLE OF STATE OF NEW YORK ex rel. WILKINSON, Treasurer, v. ETTENSON et ux. |
| Court | Kansas Supreme Court |
Error from district court, Butler county; C. W. Shinn, Judge.
Action by the people of the state of New York, on the relation of Alfred Wilkinson, as treasurer of the New York State Asylum for Idiots, against Aaron Ettenson and Betty Ettenson. Demurrer to the evidence sustained, and plaintiff brings error. Reversed.
T. E. Hancock, Atty. Gen., James A. McCormick, and A. M. Brumback, for plaintiff in error.
Hamilton & Leydig, for defendants in error.
The petition in this case shows an intent upon the part of the pleader to waive the tort, and rely for recovery upon an implied contract upon the part of defendants to pay for the support and maintenance of their idiotic son from December 7, 1880, to June 29, 1894. Smith v. McCarthy, 39 Kan. 308, 18 P. 204. An examination of the evidence satisfies us that the demurrer to the evidence should have been overruled. The suit was rightly brought in the name of the people of the state of New York upon the relation of Alfred Wilkinson, as treasurer of the New York State Asylum for Idiots. In an action of this kind, the defendants ought not to be permitted to set up their own fraud for the purpose of shortening the time within which the action might be brought. Lamb v. Clark, 5 Pick. 193. The judgment of the court below will be reversed, with directions to overrule the demurrer to the evidence. A new trial will be granted.
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