Sullivan v. Paramount Film Distributing Corp.

• Decision Date: 28 January 1950
• Docket Number: Nos. 37768,37769,s. 37768
• Citation: 168 Kan. 524,14 A.L.R.2d 458,213 P.2d 959
• Parties: , 14 A.L.R.2d 458 SULLIVAN v. PARAMOUNT FILM DISTRIBUTING CORPORATION.
• Court: Kansas Supreme Court

Page 959

213 P.2d 959

168 Kan. 524, 14 A.L.R.2d 458

SULLIVAN v. PARAMOUNT FILM DISTRIBUTING CORPORATION.

Nos. 37768, 37769.

Supreme Court of Kansas.

Jan. 28, 1950.

Syllabus by the Court

1. When an effort is made to appeal from an order of a district court it is the duty of this court to determine the jurisdictional question involved even though the parties to the proceeding do not raise it.

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.

Homer V. Gooing, of Wichita, argued the cause, and Howard T. Fleeson, Wayne Coulson, Raul R. Kitch, Dale M. Stucky and Donald R. Newkirk, of Wichita, on the briefs for appellant.

Ray H. Tinder, of Wichita, argued the cause, and W. A. Kahrs and Robert H. Nelson, of Wichita, on the briefs for appellee.

PRICE, Justice.

Each of these two actions, identical in title and all other material respects, was brought for the alleged breach of contract to deliver a motion picture film for exhibition. The question involved in each case is the same and they have been consolidated on appeal.

This is the third appearance of his consolidated appeal in this court and for a statement of the facts involved, as the same are disclosed by the petition and answer, reference is made to our former opinions in Sullivan v. Paramount Film Distributing Co., 164 Kan. 125, 187 P.2d 360, and Sullivan v. Paramount Film Distributing Corp., 166 Kan. 57, 199 P.2d 502.

Following our decision in the latter case, supra, the plaintiff filed a reply containing certain admissions and denials of matters set forth in the answer. Defendant then filed its motion for judgment on the pleadings. This motion was denied and it is from that ruling this appeal was taken.

At the outset we are confronted with the question whether an appeal lies from such an order. In his brief appellee does not strenuously press the point and neither did he do so at the time of oral argument. However, it has long been a rule of appellate procedure that it is the duty of this court to determine such jurisdictional question even though it is not raised by the parties to the proceeding. In re Estate of West, 167 Kan. 94, 204 P.2d 729.

§ 60-3302, G.S. 1935, 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...