The Security National Bank v. West

• Citation: 128 Kan. 534,278 P. 729
• Decision Date: 06 July 1929
• Docket Number: 28,790
• Parties: THE SECURITY NATIONAL BANK, Appellant, v. A. W. WEST, Appellee
• Court: United States State Supreme Court of Kansas

278 P. 729

128 Kan. 534

THE SECURITY NATIONAL BANK, Appellant, v. A. W. WEST, Appellee

No. 28,790

Supreme Court of Kansas

July 6, 1929

Decided July, 1929.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

BILLS AND NOTES--Pleading--Ruling on Motion to Strike. Under the facts as stated in the opinion it was error for the court to strike a material portion of plaintiff's petition.

C. H. Brooks, Willard Brooks, Howard T. Fleeson and H. T. Horrell, all of Wichita, for the appellant.

No appearance was made for the appellee.

OPINION

HARVEY, J.:

This is an appeal by the plaintiff from an order of the court striking out a material paragraph of an amended petition, the motion to strike being tantamount to a demurrer. (Van Deren v. Heineke & Co., 122 Kan. 215, 217, 252 P. 459.)

Plaintiff's original petition set forth a cause of action on a promissory note for $ 4,000 alleged to have been executed for value by defendant to plaintiff. Defendant in his answer admitted signing the note, but denied that he had received value therefor, and alleged that it was given in a purported renewal of two previous notes, one for $ 2,000, dated August 23, 1921, which was in fact a forged note, which defendant never executed and for which he was not liable, and one for $ 2,000, dated December 9, 1921, which defendant had been induced to sign by William A. Stryker, president, manager and general agent of plaintiff, and to leave with Stryker to be paid out of moneys Stryker was handling for defendant. These defenses are more specifically set out in Security Nat'l Bank v. West, 120 Kan. 434, 243 P. 1014, which was a former appeal in this case. A trial resulted in judgment for defendant, from which plaintiff appealed, and this court held that there could be no recovery on the $ 4,000 note sued upon in so far as it had included in it the $ 2,000 forged note of August 23, 1921, but reversed the case for a new trial on the question of defendant's liability on the note sued upon by reason of its being based upon the $ 2,000 note of December 9, 1921. The concluding paragraph of the opinion in the former appeal reads:

"The judgment is reversed and the cause remanded for a new trial upon the question whether the defendant is liable to the extent of the $ 2,000 note of December 9, 1921, his nonliability further than that to be regarded as finally adjudicated." (p. 438.)

After the mandate from this court was filed in the court below being uncertain whether it would be required to try the case on the $ 4,000 note which originally formed the basis of its action allowing it credit thereon of $ 2,000 for the forged note of August 23, 1921, or to try the case on the $ 2,000 note dated December 9, 1921, the plaintiff, on December 5, 1927, by leave of court, filed an amended petition in two causes of action. The first cause of action was founded on the $ 4,000 note, less $ 2,000 represented by the forged note of August 23,...