Sims' Estate, In re

• Decision Date: 25 January 1958
• Docket Number: No. 40770,40770
• Citation: Sims' Estate, In re, 321 P.2d 185, 182 Kan. 374 (Kan. 1958)
• Parties: In re ESTATE of U. E. SIMS, Deceased. Oscar BREWER, as Executor of Last Will and Testament of U. E. Sims, Deceased, and Southwestern College, Appellants, v. Geo. W. STANLEY, John Keely and S. L. Wilson, Appellees.
• Court: Kansas Supreme Court

Page 185

321 P.2d 185

182 Kan. 374

In re ESTATE of U. E. SIMS, Deceased Oscar BREWER, as Executor of Last Will and Testament of U E. Sims, Deceased, and Southwestern College, Appellants, v. Geo. W. STANLEY, John Keely and S. L. Wilson, Appellees.

No. 40770.

Supreme Court of Kansas.

Jan. 25, 1958.

Syllabus by the Court.

1. The record examined in an appeal from orders overruling a motion to dismiss and a motion for judgment on the pleadings, held, the motions are not appealable and this court had no jurisdiction of the appeal.

2. An order overruling a motion for judgment on the pleadings is appealable only when it can be said on the record that such motion is tantamount to a demurrer. Where issuable facts are joined by the pleadings a motion for judgment thereon is not tantamount to a demurrer and an order overruling it is not appealable.

3. The established rule in this jurisdiction is that motions to quash, dismiss, strike and make definite and certain rest in the second 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.

George Templar, Arkansas City, Earle N. Wright and Ted M. Templar, Arkansas City, on the briefs, for appellants.

Robert Martin, Wichita, George B. Collins, Oliver H. Hughes, K. W. Pringle, Jr., W. F. Schell, Thomas M. Burns, George R. Docking, Wichita, and Geo. W. Stanley, D. Arthur Walker, Norman M. Iverson, Arkansas City, on the briefs, for appellees.

HALL, Justice,

This is an appeal from orders overruling a motion to dismiss and a motion for judgment on the pleadings.

This action was originally instituted in the Probate Court of Cowley County, Kansas. An appeal was taken from the probate court to the district court; hence this appeal from the above orders of the district court.

U. E. Sims and Sarah C. Sims, husband and wife, were residents of Cowley County, Kansas. On the 19th day of March, 1952, they executed separate wills and each attached to the other's will a written consent and election to take under the will.

U. E. Sims died testate on the 6th day of July, 1955. On the 20th day of July his surviving spouse Sarah C. Sims petitioned the probate court to admit to probate the will of U. E. Sims. She also renounced her right of appointment as executrix as provided by the will and asked the court to appoint the alternate executor named in the will, Oscar Brewer. The will and her written consent and election to take were filed on July 20th with the petition.

On the 19th day of August, 1955, the probate court admitted the will of U. E. Sims to probate and further admitted to probate with the will the consent and election of Sarah C. Sims.

On the 23rd day of January, 1956, a petition was filed in the probate court by George W. Stanley, attorney at law, asking the court to revoke, set aside and hold for naught the election of Sarah C. Sims to take under the will of U. E. Sims previously admitted on August 19, 1955. Attached to the petition was a revocation of the consent and election and to take under the will and a new election to take under the law, allegedly executed by Sarah C. Sims on the 18th day of August, 1955.

This petition of George W. Stanley's further alleged that Sarah C. Sims had died on September 12, 1955; that the petitioner Stanley had filed for probate the last will and testament of Sarah C. Sims; and that the heirs, devisees and legatees of Sarah C. Sims joined in, ratified, approved and confirmed the petition filed by Stanley.

Written defenses to the petition of George W. Stanley were filed in the probate court by Oscar Brewer the executor of the will of U. E. Sims.

On the 23rd day of February, 1956, the petition of George W. Stanley and the written defenses thereto came on for hearing in the probate court. On the 27th day of March, 1956, the court made and entered its judgment on the petition. The court refused to revoke, set aside and hold for naught the consent of Sarah C. Sims which it had approved on August 19, 1955, and made its order accordingly.

On the 20th day of April, 1956, John Keely and S. L. Wilson, by their attorneys George W. Stanley and others, appealed from the probate court to the district court the order of the probate court of August 19, 1955, admitting to probate the will of U. E. Sims. The notice of appeal recited that it was taken pursuant to the authority of G.S.1949, 59-2404, which provides that an appeal may be taken within 9 months from an order admitting, or refusing to admit, a will to probate.

On the same date John Keely and S. L. Wilson, by their attorneys George W. Stanley and others, also appealed from the probate court to the district court the order and judgment of the probate court made on the 27th day of March, 1956, refusing to revoke, set aside and hold for naught the consent of Sarah C. Sims approved on August 19, 1955.

On the 5th day of February, 1957, the district court heard the motions and applications of Southwestern College of Winfield, Kansas; the Board of Trustees of the First Methodist Church of Scott City, Kansas; and Asbury Theological Seminary, beneficiaries under the will of U. E. Sims, to file written defenses to the petition of George W. Stanley. Pursuant to the order the written defenses were filed in the district court.

Thereafter the respondents and appellants here, Southwestern College and Oscar Brewer as executor of the will of U. E. Sims, moved for judgment on the pleadings and to dismiss the petition of George W. Stanley.

Appellants moved to dismiss the petition on the grounds that the petitioner George W. Stanley was not the real party in interest and could not have been authorized or entitled to institute or maintain this proceeding.

The appellants moved for judgment on the pleadings on the grounds that the petitioner George W. Stanley had no legal capacity to sue, was not the real party in interest, and that the petition did not state facts sufficient to constitute a cause of action.

The court overruled the motions but in so doing treated them as being tantamount to a demurrer. The sole specification of error on appeal is the overruling of the motions.

At the outset we are confronted with the question whether an appeal lies from the orders of the court overruling the motions.

Appellees raised but did not strees the point in their brief or oral argument. However, it is the rule of appellate procedure that it is the duty of this court to determine any jurisdictional question whether or not it is raised by the parties to the proceedings. In re Estate of West, 167 Kan. 94, 204 P.2d 729; Sullivan v. Paramount Film Distributing Corp., 168 Kan. 524, 213 P.2d 959, 14 A.L.R.2d 458; Sherk v. Sherk, 181 Kan. 297, 310 P.2d 899.

Section 60-3302, G.S.1949, dealing with the jurisdiction of this court, is in part as follows:

'The supreme court may reverse, vacate or modify any of the following orders of the district court or a judge thereof, or of any other court of record, except a probate court. First--A final order. Second--An order that * * * sustains or overrules a demurrer. Third--An order that involves the merits of an action, or some part thereof. * * *'

The next section (60-3303) defines a final order as:

'A final order which may be vacated, modified or reversed as provided in this article is an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment. * * *'

Are orders of the district court overruling a motion for judgment on the pleadins and a motion to dismiss appealable under thse provisions of the statute?

The general rules governing both motions have been written many times.

An order overruling a motion for judgment on the pleadings is appealable only when it can be said on the record that such motion is tantamount to a demurrer. Where issuable facts are joined by the pleadings a motion for judgment thereon is not tantamount to a demurrer and an order overruling it is not appealable. Sullivan v. Paramount Film Distributing Corp., supra; Diehn v. Penner, 173 Kan. 41, 244 P.2d 215; Talbott v. Farmers Union Co-op. Elevator, 174 Kan. 435, 256 P.2d 856; Buechner v. Trude, 175 Kan. 572, 266 P.2d 267; Vandegrift v. City of Wichita, 176 Kan. 141, 269 P.2d 477; Edwards v. Solar Oil Corp., 178 Kan. 218, 284 P.2d 589; Barnhouse v. Rowe, 178 Kan. 248, 284 P.2d 618; Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 313 P.2d 731; Hill v. Lake, 182 Kan. 127, 318 P.2d 1050.

The Kansas cases are collected and analyzed in 14 A.L.R.2d 458.

The rationale of the rule is simply that when the motion for judgment on the pleadings is construed as a demurrer the order overruling it becomes appealable under the provisions of G.S.1949, 60-3302.

On motions 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...