Smith v. Wyandotte Furniture Co.
| Decision Date | 06 December 1941 |
| Docket Number | 35294. |
| Citation | 154 Kan. 494,119 P.2d 478 |
| Parties | SMITH et ux. v. WYANDOTTE FURNITURE CO. et al. |
| Court | Kansas Supreme Court |
Rehearing Denied Feb. 4, 1942.
Syllabus by the Court.
An appeal from order striking certain allegations from petition would not be considered where appeal was not filed within two months as required by the Civil Code. Gen. St.Supp.1939 60-3309.
A "motion to strike" pleading can be considered as "demurrer", and an adverse ruling on the motion is the equivalent of ruling on demurrer and is "final order" and appealable. Gen.St.1935, 60-3302, 60-3303.
An order striking an amended petition from the files is "final order" and appealble.
A ruling sustaining defendants' motion to strike plaintiffs' amended petition from files or to stay proceedings would be regarded as a ruling sustaining that part of defendants' motion asking that the amended petition be struck, so as to make the ruling a "final order" which was appealable.
Ordinarily an order to stay proceedings in a pending case is not such a "final order" as will permit an appeal to be taken therefrom.
A petition alleging that agent of credit seller of furniture attempted to extort money from buyers by demanding interest as condition for extending time to pay balance due, and that demand for interest was usurious, and seeking recovery of damages for blackmail and extortion, and actual damages in amount of attorney's fee, and to quiet buyers' title to furniture, and to enjoin seller from filing suit or asserting right to repossess furniture, was insufficient to state cause of action, where words "blackmail" "extortion", and "usury" were merely buyers' conclusions on undisclosed facts.
A claim that a person believes a sum of money to be due him under contract, and assertion of contract right to repossession of property sold under such contract, did not constitute "blackmail" or "extortion".
A single attempt of seller of furniture on credit to exact usury from buyers of furniture under contract would not justify exercise of extraordinary remedy of injunction.
The pleadings examined in an action for damages for blackmail and extortion, for attorney's fees, exemplary damages injunctive and other relief, arising out of a dispute concerning a balance due on a sale of furniture on the installment plan, and held that plaintiffs' last amended petition was properly stricken from the files.
Appeal from District Court, Wyandotte County, Division No. 3; Harvey J. Emerson, Judge.
Action for damages for alleged blackmail and extortion by Ralph L Smith and Juanite Smith, his wife, against the Wyandotte Furniture Company and another. From the judgment, the plaintiffs appeal.
C. D. Bruce, of Kansas City, for appellants.
Edwin S. McAnany, Thomas M. Van Cleave, Willard L. Phillips, Bernhard W. Alden, Patrick B. McAnany, and Thomas M. Van Cleave, Jr., all of Kansas City, for appellees.
This was an action for alleged blackmail and extortion, alleging actual damages of $100 and $3,000 exemplary damages, and to cancel an item of $59.25 which plaintiff owed defendant on a bill of furniture purchased on an installment contract, to quiet plaintiffs' title to the furniture, and to restrain and enjoin defendants from filing suit or otherwise molesting plaintiffs in their peaceable possession of the furniture.
From a statement in appellants' brief we learn that an action for some such relief as stated above had been filed in the district court on November 10, 1938. On April 14, 1939, a second amended petition was filed and the trial court intimated its inclination to make some adverse ruling thereon; whereupon "plaintiffs being poor people unable to pay the costs of appeal dismissed without prejudice and refiled the said cause in a new case *** on August 9, 1939."
In that petition plaintiffs alleged that the defendant corporation was engaged in selling furniture on credit, and that defendant Paul Walker was its agent and had full authority to adjust and collect debts due the corporation. They further alleged that theretofore (date not shown) they had purchased certain furniture from defendants, and had "almost all of this paid off" when they purchased some more furniture from defendant, that the total amount charged to them therefor was $457.50, that they paid $398.23 thereon, and that defendant was endeavoring to collect a balance due thereon in the sum of $59.25, and that defendant by its agent Paul Walker did attempt to extort money from plaintiffs by demanding that they pay interest in the sum of $29.26 as a condition for extending the time to pay the balance due, and that said demand for interest was usurious to the extent of $23.34, and that defendant Walker declared that if plaintiffs did not pay the demanded interest the defendant corporation would repossess the furniture; and that by reason of such unlawful demand they were compelled to employ an attorney to protect their rights, which employment was to their damages in the sum of $100, and because of such "unlawful, malicious, willful, and wanton acts of defendants" plaintiffs were entitled to $3,000 exemplary damages.
On motion of defendants, on ...
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Hoffman v. Dautel
...of the case (Whitlaw v. Illinois Life Insurance Co., 86 Kan. 826, 122 P. 1039).' The appellants also rely upon Smith v. Wyandotte Furniture Co., 154 Kan. 494, 119 P.2d 478; and Trusler Grain Co. v. Earlton Grange Cooperative Association, 109 Kan. 293, 198 P. 964. It is then argued by the ap......
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Dawson v. Associates Financial Services Co. of Kansas, Inc.
...of a debtor to privacy is subject to the right of a creditor to take reasonable steps to collect the debt. (See, Smith v. Wyandotte Furniture Co., 154 Kan. 494, 119 P.2d 478.) In this area of the developing law, the business community must be given some latitude to pursue reasonable methods......