Stinson v. McConnell
| Decision Date | 09 June 1945 |
| Docket Number | 35808. |
| Citation | 160 Kan. 1,159 P.2d 406 |
| Parties | STINSON v. McCONNELL. |
| Court | Kansas Supreme Court |
Rehearing Denied July 13, 1945.
Appeal from District Court, Reno County; John G. Somers and Franklin B. Nettinger, Judges.
Action by M. E. Stinson against P. M. McConnell, revived in the name of Lillian Robinson, administratrix, etc., on a promissory note secured by a chattel mortgage. A judgment was entered for defendant based on a ruling sustaining defendant's demurrer to plaintiff's evidence, and, after plaintiff's motion for a new trial was overruled plaintiff appeals.
Appeal dismissed.
Syllabus by the Court.
When a motion for a new trial is filed after judgment has been entered and the appeal is taken in time from the order overruling the motion for a new trial but is not taken in time from the entry of the judgment, the pendency of the motion for a new trial does not extend the time in which an appeal may be perfected from an order sustaining or overruling a demurrer to the evidence even though the possible error is one of the grounds of the motion for a new trial.
J. S Simmons, of Hutchinson (John W. Newell, of Topeka, and R. N McConnell, of Chicago, Ill., on the brief), for appellant.
Aaron Coleman and Arthur T. Symns, both of Hutchinson (J. E Addington, of Topeka, on the brief), for appellee.
This appeal involves the effect of an alleged defense of a discharge in bankruptcy in an action brought to recover upon a promissory note signed by the bankrupt and secured by a chattel mortgage upon personal property, which personal property the appellant contends had been willfully and maliciously converted and the proceeds therefrom retained by the appellee. The appellant contends further that the appellee's discharge in bankruptcy was not properly pleaded or proved and also that it was without effect for the reason that the willful and malicious disposal of the property brought the alleged defense within the exception set forth in Section 17, sub. a (2), of the Bankruptcy Act, 11 U.S.C.A. sec. 35, sub. a(2).
The appellee contends that the petition set forth a cause of action solely for recovery upon a promissory note and did not allege anything about the same having been secured in any manner. A jury was waived and the appellant offered evidence, over appellee's objection, to the effect that the note had been secured by a chattel mortgage and that the appellee had disposed of the mortgage property without the consent of the appellant. The appellee demurred to such evidence and the trial court took the demurrer under advisement. On January 6, 1941, the court filed a written decision in which it sustained the demurrer on the ground that the evidence failed to show that the conversion of the mortgaged property was malicious. A judgment was entered for the appellee on the same date, which judgment was based upon the ruling on the demurrer. On January 8, 1941, the appellant filed a motion for a new trial upon the following grounds:
1. Erroneous rulings and orders of the court.
2. The judgment and decision are wholly contrary to the evidence.
3. For newly discovered evidence material for the plaintiff which she could not with reasonable diligence have discovered and produced at the trial.
4. That the judgment and decision are wholly unsupported by the evidence of the plaintiff and defendant introduced no evidence in support of the same.
5. That the decision is contrary to law as relating to the facts in the case.
The motion stated that affidavits, oral and documentary evidence would be produced on the hearing of the motion. On July 24, 1942, the motion for a new trial was argued, considered and overruled. The record does not show that any new evidence was offered at the hearing of the motion or that any erroneous rulings of the court were complained of except that as a matter of law it was erroneous for the court to have sustained the demurrer. Thus, it will be seen that no new facts or excluded evidence was brought to the attention of the trial court in connection with the argument on the motion for a new trial. Such being true, the motion for a new trial sought only a second ruling on the same evidence to which the court originally had sustained a demurrer and at the same time had entered judgment for the appellee. In this court all of the specifications of error pertained to rulings of the court made at the time the court sustained the demurrer to plaintiff's evidence except the error specified in the overruling of the motion for a new trial.
The notice of appeal was filed on September 23, 1942,...
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