Simmons v. Gill

• Decision Date: 09 March 1946
• Docket Number: 36473.
• Citation: 161 Kan. 123,166 P.2d 574
• Parties: SIMMONS et al. v. GILL.
• Court: Kansas Supreme Court

166 P.2d 574

161 Kan. 123

SIMMONS et al. v. GILL.

No. 36473.

Supreme Court of Kansas

March 9, 1946

Rehearing Denied April 11, 1946.

Appeal from District Court, Sedgwick County, Division No. 3; Clair E. Robb, Judge.

Action to partition real estate by Alberta Simmons and another against Florence Gill. From a judgment on the pleadings in favor of the defendant, the plaintiffs appeal.

Syllabus by the Court.

1. A general demurrer to an answer searches the record and should be sustained, if at all, to the first defective pleading.

2. On a defendant's motion for judgment on the pleadings consideration is limited to allegations of the petition and any allegations of defendant's answer admitted by plaintiff's reply.

3. Any claim or demand against a decedent's estate or a portion of it must be filed in the probate court except where provision is made in the probate code for filing it in the district court.

4. The record examined in an action for possession of and to partition real estate, and held, the trial court did not err in rendering judgment for the defendant.

William Keith, of Wichita, for appellants.

John B Bryant, of Wichita (B. Mack Bryant, of Wichita, on the brief), for appellee.

THIELE Justice.

This was an action to partition real estate. The trial court rendered judgment on the pleadings in favor of defendant and the plaintiffs appeal.

Plaintiffs' original petition was filed October 8, 1943. Defendant's demurrer to it having been sustained, plaintiffs later filed an amended petition alleging they had a legal and equitable estate in and to certain real estate in Wichita and that defendant kept them out of possession, and that their interest arose out of the following facts and circumstances. Plaintiffs are the sole surviving heirs of Etta Coe, who died intestate on February 7, 1930, leaving plaintiffs and her surviving husband Lee Coe as her heirs; that on November 23 1925, Etta Coe and Lee Coe contracted with one Blackwell to purchase the involved real estate for $1850, payable in monthly installments and that Etta Coe paid monthly installments to the amount of $1,000 out of her separate funds; that following the death of Etta Coe the said Lee Coe completed the payments and received a deed conveying the real estate to him and that he then became the legal owner with a resulting trust therein of a 20/37th interest vested in the heirs of Etta Coe, and by reason of the premises Lee Coe was vested with a 27/37ths interest and each of the plaintiffs with a 5/37ths interest in the real estate.

The plaintiffs further alleged that the real estate was purchased and occupied as a homestead by Etta Coe and Lee Coe until the death of Etta Coe and thereafter Lee Coe and the plaintiffs continued to occupy the real estate as their homestead and as tenants in common until the respective marriages of the plaintiffs in 1936 and 1938, and that prior to the death of Lee Coe he never asserted any claim or interest adverse to the plaintiffs.

The plaintiffs further alleged that Lee Coe died testate at Wichita, Kansas, on August 28, 1940, devising all of his interest in the real property to the defendant Florence Gill, and that continuously since the death of Lee Coe the defendant Gill has been occupying and renting the real estate, claiming to own all of the same under and by virtue of the will of Lee Coe, deceased, and since August 28, 1940, has excluded plaintiffs from possession and has made no accounting to plaintiffs. The prayer was for recovery of possession, for partition of the real estate, or if partition could not be had for its sale and division of the proceeds.

The defendant's demurrer to the amended petition having been overruled, she filed an answer denying generally, except for certain admissions later made, and alleging more fully that the will of Lee Coe was admitted to probate in Sedgwick County probate court; that the real estate was listed in the inventory; that each of the plaintiffs had full knowledge of the probate proceedings; that a final settlement was made and the real estate assigned to the defendant Florence Gill; that at no time did plaintiffs or either of them assert any claim and no appeal was taken from the order and judgment of the probate court of Sedgwick County assigning the real estate to the defendant Florence Gill. Other allegations of the answer need not be noted.

Plaintiffs' demurrer to the answer was overruled and they replied, denying any new matter alleged in the answer.

When the cause came on for trial, the plaintiffs requested a jury trial on the ejectment issue, and the defendant moved for judgment on the pleadings. Then followed colloquy among respective counsel and the trial court in which some reference was made to the right of plaintiffs to a trial by jury on the ejectment issue before they had made a prima facie showing of their claimed ownership, to the allegations of plaintiffs' petition and to the probate court files, at the conclusion of which the trial court sustained defendant's motion and rendered judgment against the plaintiffs and in favor of the defendant. In due time the plaintiffs perfected their appeal to this court.

Appellants' specifications of error are that the trial court erred in overruling their demurrer to appellee's answer; in refusing them a jury trial; in entertaining appellee's objection to introduction of evidence and her motion for judgment on the pleadings; and in sustaining the motion for judgment.

Although appellants make reference in their argument as to what the probate court files showed, we agree with their statement otherwise made to rebut contentions of the appellee, that these files were not a part of any pleading, nor, because of the manner in which the cause was tried, were they ever offered or received in evidence. Our...