Sheldon v. Board of Education of City of Lawrence

• Decision Date: 07 November 1931
• Docket Number: 30208.
• Parties: SHELDON v. BOARD OF EDUCATION OF CITY OF LAWRENCE et al. [*]
• Court: Kansas Supreme Court

4 P.2d 430

134 Kan. 135

SHELDON v. BOARD OF EDUCATION OF CITY OF LAWRENCE et al. ^[*]

No. 30208.

Supreme Court of Kansas

November 7, 1931

Syllabus by the Court.

Term "redundant" within statute authorizing striking out redundant matter in pleading includes that which may be immaterial or a repetition (Rev. St. 1923, 60--741).

In taxpayer's action to restrain letting of contract granting leave to file demurrer to amended petition one day late held not abuse of discretion (Rev. St. 1923, 60--703 60--727).

Numerous and erroneous adverse rulings of trial judge, subject to review, are generally not sufficient bias or prejudice necessary to disqualify trial judge (Rev. St. 1923, 60--511).

In taxpayer's action to restrain letting of contract to build schoolhouse, trial judge, though owner of property and taxpayer in city. held not disqualified (Rev. St. 1923 60-511).

In taxpayer's action to restrain letting of contract to build schoolhouse, amended petitions held insufficient to state cause of action (Rev. St. 1923, 72--1826; Laws 1925, c 229).

Trial judge, in exercise of discretion, should impose reasonable limitation on number of amendments allowed to any particular pleading (Rev. St. 1923, 60--761).

The term "redundant" in Rev. St. 60-761, which authorizes the striking out of redundant and irrelevant matter inserted in a pleading, held to include that which may commonly be termed immaterial and also that which is a repetition.

The granting of leave to file out of time a demurrer to amended petitions is within the sound discretion of the trial court, and in this case, where it was then filed only one day out of time, there was no showing of abuse of such discretion.

Previous adverse rulings of a trial judge, although numerous and erroneous, where they are subject to review are not ordinarily and alone sufficient to show such bias or prejudice as would disqualify him as judge.

Where the interest of a trial judge in a public matter involved in litigation before him is common with others, who are like him residents and taxpayers of the district involved, and is not in any particular direct or immediate, it is generally and ordinarily not sufficient per se to disqualify him.

The amended petitions analyzed and considered, and held, there was no error in sustaining the demurrer on the ground that the petitions failed to state facts sufficient to constitute a cause of action.

Appeal from District Court, Douglas County; Hugh Means, Judge.

Action by Lizzie S. Sheldon against the Board of Education of the City of Lawrence and others. From a judgment sustaining a demurrer to her amended petitions, plaintiff appeals.

Judgment affirmed.

Lizzie S. Sheldon, of Lawrence, for appellant.

Walter G. Thiele, of Lawrence, for Board of Education.

Harry Frazee, of Lawrence, for other appellees.

HUTCHISON J.

This is an action by a taxpayer to restrain and enjoin the board of education of the city of Lawrence, a city of the second class, from letting a contract to build a new schoolhouse on the site where the Pinckney school is now located, and from levying and collecting any tax therefor, for the reason that the board of education has not complied with the requirements of chapter 229, Laws of 1925, by submitting such question to the qualified voters of the district before letting, or attempting to let, the contract. An amendment was filed a few days later alleging the proposed tax was illegal for the reasons stated in the petition, and that it would become a lien upon plaintiff's property, making the county clerk and county treasurer parties defendant, and praying for an injunction against them from collecting or attempting to collect the same. The court sustained a demurrer to the petition and amended petition on the ground that they did not state facts sufficient to constitute a cause of action, and granted the plaintiff time to further plead.

A second amended petition denominated "Petition Amended" was filed, containing as an introduction the following statement: "Plaintiff in the above entitled action hereby rewrites and incorporates in her amended petition all the material facts alleged in her original petition, and in addition thereto states facts amplifying and explaining facts heretofore pleaded."

This amended petition consisted of twenty-one numbered paragraphs, and the defendants filed a motion to strike out all or part of seventeen of those paragraphs on the ground that such paragraphs or parts of them were repetition, irrelevant, or immaterial. The court sustained the motion to strike part of paragraph 3 and all of paragraphs 5, 8, 10, and 18, and overruled the motion in all other particulars. The plaintiff immediately filed a further amendment as to paragraph 10. The court then sustained a demurrer to the amended petition, as again amended, on the ground that it failed to state facts sufficient to constitute a cause of action. From this ruling the plaintiff appeals and presents five specifications of error.

The first is the striking out of the amended petition five parts thereof, which the appellant maintains was reversible error. Appellant first objects to the use of the word "frivolous" as a ground or reason for striking out a part of any pleading. Appellees concede this point. This ground was presumably not considered by the trial court, and it will not be considered here. It occurred only in connection with the third and fifth paragraphs. The other grounds given in the motion were because the objectionable portions were either irrelevant, immaterial, or repetition. Rev. St. 60--741, authorizes the striking out of redundant or irrelevant matter inserted in a pleading, and the term "redundant" properly includes that which may be immaterial or a repetition. Webster defines redundant as "exceeding what is natural or necessary; superfluous, superabundant, excessive." The question then is, Were the parts stricken out irrelevant, immaterial, or repetitions? If they were either, there was no error in that order. The parts stricken out were as follows:

Part of paragraph 3, alleging that the district already has eleven schoolhouses and an immense debt of $565,000 yet unpaid, and at all the recent elections of mayor and other officers there has been a demand for the reduction of taxes, and the complaint has been most bitter against the board of education.

All of paragraph 5, alleging that the board has publicly announced that it already has money to pay for the building, and publicly stated that it intended to pay for the schoolhouse out of the general fund that was levied for the support of schools.

All of paragraph 8, alleging that there is no public necessity for the new building, and that there is already a large and commodious schoolhouse on the original site.

All of paragraph 10, alleging that the board of education has levied a special tax of two mills on the dollar for school purposes and repairs, which was certified by the board to the county clerk on the 25th of August, which has compelled this plaintiff to make the county clerk and the county treasurer parties defendant.

All of paragraph 18, alleging that one Mont. J. Green, who was a bidder for the building contract, seems to have some interest in the question litigated, and hence the plaintiff asked the court to make him a party defendant.

We think these allegations are all irrelevant and immaterial, except paragraph 10, which is a repetition, as the same matter is more fully set out in the first amended petition, which we understand was not entirely dropped as a pleading by the language of the introductory statement in the second amendment. At any rate, if the plaintiff did not consider the first amendment as being and remaining a part of the pleadings, no prejudicial error followed the striking out of paragraph 10, because immediately after such ruling another amended petition was filed alleging the same facts as contained in paragraph 10 and was a part of the plaintiff's pleading on the hearing of the demurrer at a later date.

As to the other parts stricken out as irrelevant or immaterial, appellant contends that, if these allegations were insufficient in themselves or with others in the petition to constitute a cause of action, the motion to strike should have been overruled and the matter properly reached upon demurrer, citing Grand Lodge v. Troutman, 73 Kan. 35, 84 P. 567. In that case the entire amended petition was stricken from the files, and the only question there involved was sameness or repetition. The right to have stricken from a pleading redundant or irrelevant matter is not only specifically authorized by our statute, above cited, but a failure to bring such matter to the attention of the court before pleading thereto constitutes a waiver as stated in Savage v. Challiss et al., 4 Kan. 319, and Warren v. City of Bonner Springs, 115 Kan. 429, 224 P. 447.

"Redundancy consists of the needless repetition of material allegations, or of the insertion of irrevelant matter. *** Irrelevant matter is always redundant, although redundant averments may not be irrelevant. *** The proper remedy for redundancy is a motion to strike. ***" 49 C. J. 102.

"Immaterial, irrelevant or redundant allegations in a pleading, including surplusage, unless the surplusage is merely a matter of inducement, or is otherwise unimportant, will be stricken out where prejudicial to the moving party." 49 C. J. 718, 719, 720.

A moving party is prejudiced by redundant or irrelevant matter when by his failure to move that it be stricken out he waives objection to its being part of the pleading and is compelled to plead or answer thereto. 49 C. J. 725.

Numerous cases are cited by appellant from Kansas and other jurisdictions, holding that such...