Shirk's Estate, In re
| Decision Date | 08 July 1961 |
| Docket Number | No. 42261,42261 |
| Citation | 188 Kan. 513,363 P.2d 461 |
| Parties | . Betty Shirk O'BRIEN, Appellant, v. William S. SHIRK, Executor, Appellee and Cross Appellant. Supreme Court of Kansas |
| Court | Kansas Supreme Court |
Syllabus by the Court
Where a plaintiff moves to strike separately numbered defenses from the defendant's answer upon the ground in effect that the defenses do not state facts sufficient to constitute a defense, and after the overruling of such motions demurs to each of the separate defenses in reality raising the same question for re-examination thereof by the court, the time for appeal dates from the order upon the motions to strike and is not extended by the filing of the demurrers.
Evart Mills, McPherson, argued the cause, and was on the briefs for appellant.
Emmet A. Blaes, Wichita, argued the cause, and James A. Cassler, McPherson, and Roetzel Jochems, Wichita, were with him on the briefs for appellee and cross appellant.
This is not the first time this case has been before this court on matters of pleading. It is here again. The first installment will be found in In re Estate of Shirk, 186 Kan. 311, 350 P.2d 1, 4, where the opinion begins by stating: 'This proceeding was commenced in the probate court of McPherson County, Kansas, against the estate of a decedent for specific performance of an oral contract.'
The former case involved the petition of the present appellant (hereinafter referred to as the petitioner) and the sustaining of a demurrer to her petition seeking a right under the alleged contract to inherit one-third of her mother's estate. We held in the first case that it had been error for the district court to sustain the demurrer to the petition and reversed the trial court's decision. The opinion in the former case sets out many details which need not be repeated at this time.
When the case returned to the district court, the executor filed an answer. The answer contained seven numbered paragraphs, the first of which was a general denial. Each of the other six paragraphs contained a separate affirmative defense and had a beginning title. The form will be clearer when the paragraphs involved in this appeal are examined infra.
On April 7, 1960, petitioner filed in one document separate motions to strike each of the separate affirmative defenses contending in effect that they were insufficient to state a defense as then pleaded in the answer. In many of the paragraphs, petitioner also moved, if the motion to strike were denied, that the defense be amended by alleging additional facts. On May 10, 1960, the district court sustained the motion to strike from the executor's answer the seventh paragraph thereof involving the defense of an election of remedy, and overruled the balance of petitioner's motions.
On May 27, 1960, the petitioner filed a pleading entitled 'Demurrers and Reply.' This pleading contained separate demurrers to each of paragraphs 3, 4, 5, and 6, on the ground that the separate defenses do not 'state facts sufficient to constitute a defense to the causes of action alleged by claimant.' The pleading further contained a general denial as to the allegations in paragraph 2 of the answer relating to the non-claim statute.
On July 15, 1960, certain motions, not now involved but filed by petitioner after May 10, 1960, and the separate demurrers to the separate affirmative defenses contained in the answer were argued to the court. The motions were on that day overruled, and the court took the demurrers under advisement until July 25, 1960, at which time it sustained the demurrer to paragraph 3 of the answer and overruled the demurrers as to paragraphs 4, 5, and 6. On July 26, 1960, petitioner appealed to this court from the orders on the demurrers and also from the orders on the motions to strike entered on May 10, 1960, together with the orders on various motions to make the answer definite and certain.
To sum up the situation, the part of the answer now under attack by the separate demurrers and motions to strike read as follows:
'4. Breach of Filial Obligations. For many years prior to the death of Gertrude McCourt Shirk, the claimant had by her conduct and actions breached each and every of her filial obligations to her mother, and her violations of such obligations were so serious as to effect a complete severance and termination of any reciprocal obligations, either moral or contractual owing to her by her mother. By reason of the same, the said deceased was completely freed of any legal obligation she may theretofore have had to treat the claimant as an heir at law.
'5. Advancements. Through the years prior to the death of the deceased, the claimant had by various devices repeatedly obtained large sums of money from her mother. Said sums also operated as a complete discharge of any obligation of the mother to treat the claimant as an heir at law and were advancements on any such obligation.
To restate the contention of the parties, petitioner claims the executor should plead more facts in the above paragraphs; that as now pleaded the allegations amount to mere conclusions of law. The executor apparently would have it held that these allegations amount to conclusions of ultimate fact, and that it is not necessary or proper to plead matters of evidence. This has been a recurring problem in all states having a code of civil procedure descended from the New York code of 1848, see Clark, on Code Pleading (2d ed.) sec. 38, p. 225 et seq. where the eminent author discusses the question at some length. As to the handling of this question in Kansas, attention may be directed to the cases cited in Dassler's Kansas Civil Code, supplementary edition, Ch. 11, § 10.
The question which arises first is: Does petitioner as appellant have a timely appeal before the court?
The petitioner raised the same question on her motions to strike as she again raised on the separate demurrers to the various affirmative defenses of the executor's answer. The motions to strike were overruled on May 10, 1960, and the...
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