Sherman v. Cron

• Decision Date: 08 May 1948
• Docket Number: 37106.
• Citation: 165 Kan. 138,193 P.2d 206
• Parties: SHERMAN et al. v. CRON et al.
• Court: Kansas Supreme Court

193 P.2d 206

165 Kan. 138

SHERMAN et al. v. CRON et al.

No. 37106.

Supreme Court of Kansas

May 8, 1948

Appeal from District Court, Butler County; W. N. Calkins, Judge.

Action to set aside conveyances of realty and for damages by A. R Sherman and another against F. H. Cron, as an individual and as administrator de bonis non with the will attached of the estate of John B. Sherman, deceased, and others. From an order overruling plaintiffs' motion to set aside an order of dismissal of the action for lack of prosecution, the plaintiffs appeal.

Appeal dismissed.

Syllabus by the Court.

On June 13, 1947, the trial court made an order dismissing an action for lack of prosecution. Plaintiffs' motion that the order of dismissal be set aside and the action reinstated was denied on September 5, 1947, and on October 16, 1947, the plaintiffs perfected their appeal from the ruling on that motion. Held, (a) that the order dismissing the action was a final order from which an appeal could have been taken; (b) that there is no provision of the code of civil procedure for a motion to set aside an order of dismissal and to reinstate the action, and that the ruling on a motion for that purpose furnished no basis for an appeal.

Grey Dresie, of Wichita, for appellants.

J. B McKay, of El Dorado (Clem H. Silvers, of El Dorado, on the brief) for appellee F. H. Cron.

Elmer W. Columbia, of Parsons, and R. Y. Taliaferro, Jr., of El Dorado, for appellees Sadie Taliaferro, Margaret Doane Lucille Guinn and Robert Y. Taliaferro, Jr.

THIELE Justice.

This is an appeal by plaintiffs from an order overruling their motion to set aside an order of dismissal of their action for lack of prosecution.

In view of our conclusions later stated, it is not necessary that the facts be fully reviewed. On April 30, 1941, plaintiffs commenced their action against the defendants to set aside conveyances of real estate, and for damages. In 1942 defendant F. H. Cron answered, in July 1946, defendants Taliaferro, Taliaferro and Doane answered, and about that time publication service was had upon defendant Guinn, who demurred.

Under the statutes, terms of court are had in Butler county commencing on the first Monday in March and the second Monday in June and November of each year. G.S. 1947 Supp. 20-1013.

On June 9, 1947, being the opening day of the June 1947 term, the case was reached in its regular order on the call of the docket and as shown by the journal entry the various defendants were present by attorneys, but the plaintiffs did not appear, either in person or by attorney. The journal entry further recites:

'Thereafter, and on June 13, 1947, plaintiffs still having failed to appear, either in person or by attorney, the Court, from an examination of the file, and from its own knowledge of the facts and circumstances, and being fully advised in the premises, finds, on its own motion, that this action should be dismissed for lack of prosecution.

'It Is Therefore, on this 13th day of June, 1947, ordered, adjudged and decreed that this action be and the same is hereby dismissed for lack of prosecution at the costs of the plaintiffs.'

On July 3, 1947, plaintiffs filed their motion praying that the order of dismissal be set aside...