Rockhill v. Tomasic

• Decision Date: 14 May 1960
• Docket Number: No. 41781,41781
• Citation: 186 Kan. 599,352 P.2d 444
• Parties: Kenneth P. ROCKHILL, Administrator of the Estate of Albert W. C. Timm, a/k/a Albert Timm, Deceased, Appellee, v. Nick J. TOMASIC, Appellant.
• Court: Kansas Supreme Court

Page 444

352 P.2d 444

186 Kan. 599

Kenneth P. ROCKHILL, Administrator of the Estate of Albert W. C. Timm, a/k/a Albert Timm, Deceased, Appellee, v. Nick J. TOMASIC, Appellant.

No. 41781.

Supreme Court of Kansas.

May 14, 1960.

Syllabus by the Court

1. A motion to strike rests in the sound judicial discretion of the district court, and an order sustaining such a motion must constitute a final order to be appealable, and to constitute a final order it must affect a substantial right and in effect determine all or a part of the suit or, in the case of an answer, deprive the defendant of a meritorious defense which, if supported by evidence, would defeat the plaintiff's cause of action, or a part thereof.

2. For the purpose of a decision on a motion to strike an affirmative defense pleaded in an answer as insufficient in law, well pleaded allegations will be taken as true.

3. Where no final judgment has been rendered on the merits, an order sustaining a motion to strike from an answer constituting a final order and having the same effect as a demurrer is not such a final judgment or order as to deprive the district court of authority to permit the filing of an amended answer within the same term of court or even in a subsequent term.

4. An appeal may not be taken from an order sustaining a motion to strike from an amended answer where it can be said, on the record, that a previous motion to strike the same or similar allegations alleging the same defenses had been sustained to the original answer, raising the same question of law previously ruled upon, and no appeal from such order had been timely perfected.

5. The record is examined, and it is held: the attempted appeal was not timely perfected pursuant to G.S.1949, 60-3309.

H. E. Jones, Wichita, argued the cause, and A. W. Hershberger, Richard Jones, Wm. P. Thompson, Jerome E. Jones, Robert J. Roth, and William R. Smith, Wichita, were with him on the briefs for appellant.

George Forbes, Eureka, argued the cause, and Fred W. Aley, Robert B. Morton, John Jay Darrah, Phillip S. Mellor, and Paul M. Buchanan, Wichita, and Thos. C. Forbes and Harold G. Forbes, Eureka, were with him on the briefs for appellee.

FATZER, Justice.

This action was commenced by the plaintiff as administrator of the estate of Albert W. C. Timm, deceased, against Nick J. Tomasic for damages to an automobile, loss of wages, and personal injuries to the decedent accruing from October 7, 1957, the date of the accident, to November 27, 1957, the date of death. A motion to strike an affirmative defense pleaded in the amended answer was sustained on August 31, 1959, without leave to amend. Hence, this appeal.

General reference is made to the pleadings of the parties and only those pertinent to this appeal will be summarized or quoted. The plaintiff alleged in his petition that on October 7, 1957, a collision occurred between a Chevrolet pick-up truck driven by the decedent and a 1955 Mercury driven by the defendant on U. S. Highway No. 54 in Greenwood County, by reason of the defendant driving his Mercury on to the wrong side of the road at an excessive rate of speed, and other acts of negligence were alleged; that the decedent suffered damages to his truck, suffered severe personal injuries and loss of wages, which damages survived to the administrator of his estate pursuant to G.S.1949, 60-3201.

In his answer the defendant denied negligence on his part and alleged contributory negligence on the part of the decedent. Further answering, the defendant alleged as a separate and affirmative defense, the following:

'4. Further answering this defendant alleges that the plaintiff has previously instituted suit in the District Court of Greenwood County, Kansas numbered 19,807, which said case was removed upon the petition of this defendant in the United States District Court for the District of Kansas, and there given Civil Action No. 1508. At that time plaintiff in this action was being represented by the firm of Forbes & Forbes and the firm of Aley, Morton & Darrah, who appear as attorneys of record in this case also.

'Prior to the institution of the above mentioned suit, a suit had been instituted by Opal Timm as the surviving spouse of Albert C. Timm, against this same defendant in the Court of Greenwood County, Kansas, bearing Case No. 19,791, which said case was removed to the United States District Court for the District of Kansas, on the petition of this defendant and there given Civil Action W-1467. Said Opal Timm at said time and during the course of said proceedings was also represented by the firm of Forbes & Forbes and Aley, Morton & Darrah. Motion to consolidate both cases was filed by this defendant in said United States District Court for the District of Kansas, but before said motions could be heard the plaintiff in this action dismissed the above numbered case, and thereby plaintiffs in said action and their attorneys elected which action they were to pursue and there estopped to reassert said action.

'The action of Opal Timm v. Nick J. Tomasic in the case above referred to in the United States District Court for the District of Kansas proceeded to trial upon the issues there drawn, included the allegations that Nick J. Tomasic was not negligent in any respect, and after trial to a jury on December 15 and 16, jury returned a general verdict against the plaintiff and for the defendant, Nick J. Tomasic, finding generally for said defendant upon the issues drawn and without answering any special questions.

'This defendant, therefore, asserts that the party plaintiff in this action and in the action of Opal Timm v. Nick J. Tomasic, above referred to, are of equal quality in that their action rests solely upon the conduct of Albert C. Timm in each case and that, therefore, would have been a determination after trial, that said determination of the conduct existing by the said Albert C. Timm and this defendant has been determined, and that the defendant should have judgment herein.'

The plaintiff filed a motion to strike paragraph 4 upon the ground that it did not constitute a defense to the cause of action alleged, which motion was sustained on March 23, 1959, and the defendant was granted leave to amend. Subsequently the defendant filed an amended answer in which he renewed the denial of negligence on his part, realleged contributory negligence on the part of the decedent, and alleged a new paragraph 4 as follows:

'4. Further answering this defendant alleges that prior to the appointment of plaintiff Kenneth P. Rockhill as administrator of the Estate of Albert W. C. Timm, the surviving spouse of Albert W. C. Timm, Opal Timm, commenced an action in the District Court of Greenwood County, Kansas, for the benefit of herself and the two children of Albert W. C. Timm pursuant to G.S. of Kansas, 1949, Section 60-3204, against this same defendant. Said action was removed to the United States District Court for the District of Kansas and there given Case Number W-1467. Trial was had in said case on the issues drawn and a general verdict rendered by the jury on December 16, 1958, without any special questions being submitted. The said Albert W. C. Timm for whose death said above mentioned action was tried and the Albert W. C. Timm for whom plaintiff herein is administrator were one and the same person, and by reason of said trial and judgment plaintiff herein is barred and estopped from maintaining this action.'

The plaintiff filed a motion to strike paragraph 4 from the amended answer upon the same ground, which was sustained by the district court on August 31, 1959, without leave to amend.

During the pendency of this appeal, the plaintiff filed a motion to dismiss it upon the ground that it was not perfected within the time prescribed by G.S.1949, 60-3309.

The instant appeal was taken from the order of August 31, 1959, striking the alleged affirmative defense from the amended answer, which was more than two months after the order of March 23, 1959, striking the same purported affirmative defense from the original answer. No appeal was taken from the earlier order; consequently, the merits of that order are not before us for appellate review (Nicholas v. Latham, 179 Kan. 348, 295 P.2d 631; Pennington v. Kansas Turnpike Authority, 180 Kan. 638, 639, 305 P.2d 849; Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 308 P.2d 172; Dryden v. Rogers, 181 Kan. 154, 156, 309 P.2d 409; Neuvert v. Woodman, 185 Kan. 373, 378, 343 P.2d 206; Little v. Butner, 186 Kan. 75, 78, 348 P.2d 1022).

It is the rule in this jurisdiction that the time for taking an appeal from an order striking allegations involving the merits of a cause of action or defense cannot be extended by alleging the same cause of action or defense in a subsequent pleading and taking...