Plains State Bank v. Ellis

• Court: Kansas Supreme Court
• Writing for the Court: THIELE; SMITH
• Citation: Plains State Bank v. Ellis, 263 P.2d 254, 175 Kan. 261 (Kan. 1953)
• Decision Date: 07 November 1953
• Docket Number: No. 39088,39088
• Parties: PLAINS STATE BANK v. ELLIS et al.

Page 254

263 P.2d 254

175 Kan. 261

PLAINS STATE BANK v. ELLIS et al.

No. 39088.

Supreme Court of Kansas.

Nov. 7, 1953.

Syllabus by the Court.

1. The record examined in an action for the recovery of money wherein, subsequent to the filing of the petition and answer, additional parties were made defendants after which a series of amended answers and cross-petitions and replies and answers, as well as motions directed thereat, were filed following which trials were had and judgments rendered, all as more fully set forth in the opinion, and held, that no prejudicial error resulted against the plaintiff from the trial court's ruling in ordering additional parties made defendants, in ruling on motions to dismiss the action, permitting filing of pleadings, overruling a demurrer to a pleading, or in denying the plaintiff's motion for a new trial.

2. The record further examined, and held, that the judgment rendered by the trial court was not contrary to the evidence.

James A. Williams, Dodge City, argued the cause, and C. W. Hughes and Byron G. Larson, Dodge City, were with him on the brief, for appellant.

Chas. Vance, Liberal, argued the cause, and H. Hobble, Jr., and Chester A. Nordling, Liberal, were with him on the brief, for appellees.

THIELE, Justice.

The plaintiff bank appeals from a judgment denying its claim to certain moneys as hereafter set out. Consideration of the contentions urged by it requires a summary review of an extended course of pleadings, rulings and other matters.

On February 1, 1951, Plains State Bank, later referred to as the Bank, commenced an action against V. M. Ellis, Lee Roy Kerr and Estelle Kerr, later referred to by their surnames, to recover on two notes, signed only by the Kerrs, but claimed by the bank to be a partnership obligation of Ellis and the Kerrs, a copy of the contract between Ellis and the Kerrs for farming operations being attached. This case was docketed as No. 6202. Ellis filed an answer denying liability on the notes and that a partnership existed, and alleged that Kerr was his tenant; that Kerr had disposed of a part of the 1948 wheat crop to Collingwood and a part to Plains Equity Exchange and Co-operative Union, hereafter called Equity, and had failed to account; that the Bank claimed a chattel mortgage lien on Kerr's share of the wheat; that his mother Minnie Ellis and he had a first and prior landlord's lien on the crop; and that it was necessary Minnie Ellis, Collingwood and Equity be made parties, and that all parties be required to set up their claims, and on motion, the court so ordered. Thereafter summons was issued to Seward County for Collingwood and to Meade County for Minnie Ellis and Equity and they were personally served. On August 13, 1951, Ellis filed an amended answer and cross-petition setting up facts showing that he and his mother were landlords and that Kerr was the tenant, and after referring to his written agreement with Kerr and Kerr's chattel mortgage to the Bank, alleged that Kerr delivered wheat worth over $7,200 to Collingwood who drew some checks on plaintiff Bank which were endorsed by Kerr without authority of Ellis and Ellis never received any part of the proceeds, and omitting some other allegations, alleged that all of the wheat so sold was rent wheat belonging to Ellis under his lease contract with Kerr. He also pleaded a similar second cause of action concerning sale of wheat by Kerr to Equity of the value of over $5,300; that Kerr had wrongfully cashed the checks at plaintiff Bank, and that the wheat so sold was rent wheat. A third cause of action re-alleged many of facts stated in the first and second causes of action, expanded thereon, alleged that Kerr had removed from the state and was insolvent, that Ellis had a lien subject only to his mother's landlord's lien, and superior to the Bank's lien under its mortgage from Kerr, and that a determination of the Ellis liens was necessary to determine the ownership of wheat delivered to Equity for which it withheld payment by reason of the Bank's demand. On October 4, 1951, the Bank demurred to the Ellis cross-petition on the ground of misjoinder, and on February 28, 1952, the court sustained the demurrer and gave Ellis permission to file separate petitions. On March 10, 1952, Ellis filed a pleading entitled 'Separate Cross-Petition Against Plaintiff and All Defendants', in which he alleged much of the matter contained in his previous cross-petitions. On March 14, 1952, the Bank filed its motion that the last mentioned pleading be stricken from the files because it was filed without permission or authority from the court, statute or other law and did not constitute separate petitions as contemplated by G.S.1949, 60-709 or by the order of the court, and that the filing of the pleading was an attempt to combine in the action all of his alleged causes of action against Collingwood and Equity notwithstanding a demurrer had been sustained to his original cross-petition on the ground of misjoinder. The motion was denied. The record does not clearly disclose, but in some manner three new docket numbers were assigned, 6327 to Kerr's claim against Equity, 6328 to Kerr's claim against Collingwood, and 6329 to the controversy between the Bank and Ellis. In the last docketed case and on May 3, 1952, the Bank filed an amended answer to Ellis's separate cross-petition which need not be reviewed, further than to state it included a demurrer alleging misjoinder.

Under some circumstances or arrangement not disclosed by the record, the original case under its original docket number was tried to determine liability on the notes which Kerr gave the Bank. The trial resulted in a judgment rendered July 25, 1952, in favor of Kerr and against the Bank, which appealed to this court where the judgment was affirmed June 6, 1953. See Plains State Bank v. Ellis, 174 Kan. 653, 258 P.2d 313.

Before the above appeal was determined and on October 7, 1952, the following three cases came on for trial. In case No. 6329 it was stipulated that the evidence taken in numbers 6327 and 6328 and the admissions and stipulations made should be received in evidence insofar as relevant. Certain admissions were made and evidence was received. On November 29, 1952, the trial court rendered judgment in each of the three cases, but in view of the fact the Bank is the only appellant and its rights were determined only in case 6329, we shall confine ourselves to that judgment. The journal entry of judgment filed contains some general findings of fact, followed by findings in each case 6327, 6328, and 6329 separately with conclusions of law in each case. It is not necessary that the findings and conclusions be reviewed in detail. The include the following. Under a written agreement, Ellis leased to Kerr 1,440 acres of land. Ellis was to furnish the land and farming machinery and Kerr was to furnish fuel and labor, the crops to be divided 60% to Ellis and 40% to Kerr. It was stipulated that Minnie Ellis had an interest in the land, and that under the above agreement she would get one-sixth V. M. Ellis would get one-half, and Kerr would get one-third of the crop. Kerr and his wife were indebted to the Bank in the sum of $7,250 on notes on which there were no credits. The crop for 1948 was valued at $22,901.85 and all had been accounted for except that Equity had on hand $4,037.99 worth of wheat to be distributed in the action. A finding made covers the amount of wheat sold to Collingwood and Equity and disposition of proceeds. The court further found that testimony had been presented by the Bank that it had a chattel mortgage on 5,000 bushels of wheat owned by Kerr on the Ellis land, given to secure the above mentioned notes; that there was no allegation in the pleadings of the mortgage except Ellis' statement that the Bank claimed a mortgage and the Bank admitted such allegation. (We may here say the abstract does not include any chattel mortgage, the list of exhibits received, shown in the abstract, does not include it, and we are left in the dark as to what its terms were or that it was ever filed for record.) As a matter of law the trial court concluded that of the balance of $4,037.99 held by Equity, and represented by a check 'cancelled by these proceedings', Minnie Ellis was entitled to $1,229.43 which would pay her in full for her share of the 1948 crop leaving a balance of $2,808.56; that Ellis' share of the crop was $11,450.93 of which he had received $8,461.25 leaving due Ellis as his landlord's share the sum of $2,989.68; that the balance was insufficient to satisfy Ellis' landlord's share and the balance held by Equity belongs to Ellis. Judgment was rendered accordingly, the judgment to be paid out of the $4,037.99 held by Equity.

In due time the Bank filed a motion for a new trial, and that motion being denied, on January 27, 1953, it served a notice of appeal only upon Ellis and his attorneys of record.

On June 24, 1953, Ellis filed his motion that the appeal be dismissed. Two grounds are set forth: 1, that the only money judgment rendered was in favor of Ellis against Equity, and it is a necessary party to the appeal; and 2, that the issues raised are moot for the reason the judgment against Equity was for $2,808.56 in favor of Ellis and $1,229.43 in favor of Minnie Ellis; that the execution on the judgment was not stayed and Ellis caused execution to...