Sherk's Estate, In re

• Decision Date: 11 May 1957
• Docket Number: No. 40488,40488
• Citation: 310 P.2d 899,181 Kan. 297
• Parties: In the Matter of the Partnership ESTATE of John SHERK, Deceased, and Wayne Sherk, Partners, Doing Business under the Firm Name and Style of Sherk's Auto Supply. Opal E. SHERK, Administratrix of the Estate of John Sherk, Deceased, Appellant and Cross-Appellee, v. Wayne SHERK, Surviving Partner and Administrator of the Partnership Estate of John Sherk, Deceased, and Wayne Sherk, Partners, Doing Business under the Firm Name and Style of Sherk's Auto Supply, Appellee and Cross-Appellant.
• Court: Kansas Supreme Court

Page 899

310 P.2d 899

181 Kan. 297

In the Matter of the Partnership ESTATE of John SHERK Deceased, and Wayne Sherk, Partners, Doing Business under the Firm Name and Style of Sherk's Auto Supply Opal E. SHERK, Administratrix of the Estate of John Sherk Deceased, Appellant and Cross-Appellee, v. Wayne SHERK, Surviving Partner and Administrator of the Partnership Estate of John Sherk, Deceased, and Wayne Sherk Partners, Doing Business under the Firm Name and Style of Sherk's Auto Supply, Appellee and Cross-Appellant.

No. 40488.

Supreme Court of Kansas.

May 11, 1957.

Syllabus by the Court

1. In an appeal from the order of a district court overruling a motion to strike from the files a petition filed in probate court, held--the order overruling the motion was neither final nor determinative of the rights of the parties to the action as required by G.S.1949, 60-3302 and 60-3303 and therefore not an appealable order.

2. The established rule in this jurisdiction is that motions to quash, dismiss, strike and make definite and certain rest in the sound discretion of the trial court, and orders overruling such motions are not appealable under G.S.1949, 60-3302 and 60-3303 unless they are final, affect a substantial right, or, in effect, determine the action.

3. Although the parties have not raised the question this court may and has the duty to raise and determine its jurisdiction to hear an appeal.

Justus N. Baird, Kansas City, argued the cause and George W. Thomas, Kansas City, was with him on the briefs for appellant and cross-appellee.

William E. Carson, Kansas City, argued the cause and Clarence C. Chilcott and Preston Forsee, Kansas City, Mo., were with him on the briefs for appellee and cross-appellant.

HALL, Justice.

This is an appeal from an order of the district court overruling the motion to strike from the files a petition filed in probate court.

On or about the second day of February, 1955, Opal E. Sherk, appellant and cross-appellee herein, filed her petition in the probate court of Wyandotte County, Kansas, alleging that John Sherk died intestate as a resident of Wyandotte County, that she was his surviving spouse and sole heir at law and that she be appointed administratrix of his estate. She was duly appointed.

On the 5th day of April, 1955, Wayne Sherk, appellee and cross-appellant herein, filed a petition in the probate court asking that Opal E. Sherk be discharged as administratrix and to probate an alleged lost or concealed will of decedent John Sherk. The court denied his petition.

On the same day, April 5, 1955, Wayne Sherk also filed a verified petition in a separately docketed action in the probate court of Wyandotte County entitled 'In The Matter of the Partnership Estate of John Sherk, Deceased, and Wayne Sherk, Partners, doing business under the Firm Name and Style of Sherk's Auto Supply'. In this petition Wayne Sherk alleged that John Sherk the decedent was his brother and that a partnership had existed between them since 1935 and that substantially all the assets of the estate of John Sherk belonged to the partnership. The petitioner further alleged that the partnership was dissolved by the death of John Sherk and prayed 'that this court find and determine that a partnership existed between your petitioner and the said John Sherk; * * *' and that the petitioner as surviving partner be permitted to continue the operation of the business and administer all the partnership estate.

To the petition of Wayne Sherk, Opal E. Sherk filed a motion to quash for the reason that the probate court was 'without jurisdiction to determine the existence or nonexistence of a partnership in a separate action filed therein', and for the further reason 'that the existence or nonexistence of a partnership, if not admitted, is an action for the jury in a proper court'.

The court overruled the motion to quash.

Opal E. Sherk then filed an answer to the petition and the matter went to hearing. At the conclusion of the hearing she filed a demurrer which was overruled and judgment was entered finding that a partnership existed and that Wayne Sherk be appointed, take oath and post bond to administer the partnership estate.

Opal E. Sherk then appealed to the District Court of Wyandotte County from the judgment of the probate court. After filing notice of appeal and obtaining service, Opal E. Sherk then filed in the District Court of Wyandotte County a 'motion to strike from the files the petition filed by Wayne Sherk in the above matter'. In this motion Opal E. Sherk moved the court to strike the petition for the following reasons:

'First. It is within the equitable jurisdiction of the District Court to determine the existence or non existence of a Partnership, and if the facts are in dispute it becomes a question for the jury to determine.

'Second. That the Probate Court was without jurisdiction in a separate action such as case number 30738 (the partnership petition), to determine the existence or non existence of a partnership and to determine the title to personal property and real estate, and to hear and determine the issues alleged in said petition of Wayne Sherk.'

The district court overruled the motion to strike the petition; hence this appeal.

Appellant raises only this question on appeal:

'Did the Probate Court have power and jurisdiction to hear and determine the issues alleged in the petition of Wayne Sherk filed in the separate action number 30-738 filed in the Probate Court?'

Appellee challenges the right of Opal E. Sherk to be heard on this appeal and cross appeals on the failure of Opal E. Sherk to provide proper bond as administratrix of the estate of John Sherk, deceased.

Before the merits of this appeal may be considered, the jurisdiction of this court to hear it must be determined. While neither party to this appeal raises the point, the jurisdictional question to be determined is whether appellant has an appealable order before the court under the provisions of G.S.1949, 60-3302 and 60-3303.

The established rule in this jurisdiction is that motions to quash, dismiss, strike and make definite and certain rest in the sound discretion of the trial court, and orders overruling such motions are not appealable under G.S.1949, 60-3302 and 60-3303 unless they are final, affect a substantial right, or, in effect, determine the action. Brown v. Kimble, 5 Kan. 80; Montgomery Ward & Co. v. Ellis, 152 Kan. 320, 103 P.2d 817; St. Paul Fire & Marine Ins. Co. v. Bender, 153 Kan. 752, 113 P.2d 1062; Hudson v. Hudson, 142 Kan. 358, 46 P.2d 882; Pulliam v. Pulliam, 163 Kan. 497, 183 P.2d 220, 1 A.L.R.2d 418; Singleton v. State Highway Comm., 166 Kan. 406, 201 P.2d 650; Nelson v. Schippel, 143 Kan. 546, 56 P.2d 469; La Harpe Fuel Co. v. City of Iola, 152 Kan. 445, 448, 105 P.2d 900; Gibson v. Bodley, 156 Kan. 338, 133 P.2d 112; Estes v. J. A. Tobin Construction Co., 159 Kan. 322, 153 P.2d 939; Giltner v. Stephens, 163 Kan. 37, 42, 180 P.2d 288; Atkinson v. Sowersby, 165 Kan. 678, 683, 198 P.2d 158; Hill v. Hill, 168 Kan. 639, 640, 215 P.2d 159; Krey v. Schmidt, 170 Kan. 86, 223 P.2d 1015; Sheahan v. Kansas Power & Light Co., 172 Kan. 399, 241 P.2d 515; Marchant v. Layton, 173 Kan. 341, 245 P.2d 973; Vogt v. Drillers Gas Co., 178 Kan. 146, 283 P.2d 442; City of McPherson v. Smrha, 179 Kan. 59, 293 P.2d 239; Boettcher v. Criscione, 180 Kan. 39, 299 P.2d 806; Fogo v. Steele, 180 Kan. 326, 304 P.2d 451.

This court may and has the duty to raise...