Rupp v. Rupp, 38157

• Decision Date: 10 March 1951
• Docket Number: No. 38157,38157
• Citation: 228 P.2d 692,170 Kan. 651
• Parties: RUPP v. RUPP et al.
• Court: Kansas Supreme Court

Page 692

228 P.2d 692

170 Kan. 651

RUPP v. RUPP et al.

No. 38157.

Supreme Court of Kansas.

March 10, 1951.

Syllabus by the Court

1. Before appellant can recover real property in an action under G.S.1949, 60-2001, he must show not only that he has a legal or equitable estate therein, but that he has a present or immediate right of possession thereto.

2. It is the established rule in this state that the matter of determining the weight of the evidence and the credence to be accorded to testimony of witnesses is the exclusive function of the trial court and not a matter for appellate review.

Ralph N. Noah, of Beloit, argued the cause, and Delmas L. Haney, and Benedict P. Cruise, both of Hays, were with him on the briefs for appellant.

F. F. Wasinger, of Hays, argued the cause, and Norbert R. Dreiling, also of Hays, was with him on the briefs for appellees.

WERTZ, Justice.

This was an action in ejectment. Judgment was rendered generally for defendants, and plaintiff appeals.

Appellant alleged in his petition that he was the owner of an undivided one-half interest in the quarter section of real estate in question; that he was a tenant in common with appellee Barbara Rupp, owner of the remaining one-half interest; and that he was entitled to possession of said real estate but appellees wrongfully keep him out of possession thereof. Appellee Elmer Rupp for his defense denied appellant's right of possession and alleged that he was a tenant of appellant by virtue of an oral lease. Appellee Barbara Rupp filed a general denial.

At the outset it might be stated that appellant Alex A. Rupp and appellee Barbara Rupp are husband and wife and appellee Elmer Rupp is their son. It is admitted that appellant and appellee Barbara Rupp are joint owners of the real estate in question and had occupied it as their homestead for about thirty years. The undisputed facts are that on August 23, 1949, Barbara Rupp is another action in the same court filed suit for divorce against appellant and on the same date secured an order restraining appellant from: 'going to the home of the plaintiff [Barbara Rupp] or the premises appurtenant thereto (describing involved quarter section of real estate) or remaining in and about said premises while the plaintiff occupies the same as a home and that he be and he is hereby restrained and enjoined from in any manner, either by actions or words, interfering with or molesting the plaintiff while in the peaceable possession of said home and he is hereby restrained and enjoined from bothering or hindering the plaintiff in any way at any other place that she may be * * *.'

This order was duly served on appellant.

Thereafter and on September 15, 1949, appellant, in violation of the restraining order, went with another son to the garage on the described premises to see his car, to get the son's fish seine, and to see about wheat planting, but both of them were ordered to leave the premises by appellee son Elmer, appellee Barbara Rupp being present and verbally assisting, and they were advised not to return unless they brought a sheriff along.

On September 17th following, this action in ejectment was filed, after trial of which the court found that 'the evidence fails to show any forcible eviction from the land' and entered judgment for appellees, defendants below.

Appellant's cause of action in ejectment is based...