Vogt v. Drillers Gas Co., 39732
| Decision Date | 07 May 1955 |
| Docket Number | No. 39732,39732 |
| Citation | 178 Kan. 146,283 P.2d 442 |
| Parties | Jacob J. VOGT, Appellee, v. The DRILLERS GAS COMPANY, a Corporation, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
An appeal from an order sustaining in part and overruling in part a motion to strike portions of an amended petition, as shown in the opinion, is dismissed for the reason that it is not an appealable order as defined by our statutes. G.S.1949, 60-3302, 60-3303.
Wesley E. Brown, Hutchinson, argued the cause, and D. C. Martindell, W. D. P. Carey, Edwin B. Brabets, R. J. Gilliland, John F. Hayes, C. William Miller, R. C. Martindell, and Jack C. Stewart, Hutchinson, were with him on the briefs for appellant.
Cliff Morgan, Newton, argued the cause for appellee.
Appellee, a resident of McPherson county, brought his original action in Harvey county against appellant, a Kansas corporation, which its principal offices in Wichita, Sedgwick county.
This appeal was taken from an order of the trial court which sustained in part and overruled in part a motion by appellant to strike certain parts of appellee's amended petition.
The petition, in substance, alleged that appellee owns a certain described tract of land over which appellee's father and predecessor in title granted appellant a right of way for gas pipe line purposes. In the right of way agreement of February 16, 1937, appellant agreed to pay any damages to appellee's crops, fences, stock and land. Appellee set out a list of the damages in each year beginning in 1937 up to and including 1952, totaling $604, plus $1 per day from January 15, 1953, for pipe storage until the pipe is removed or this action is determined. Appellant owns pipe lines in Harvey county but none of its officers resides there nor does it have any office in Harvey county. It has never been a common carrier. The sheriff of Sedgwick county made a return showing corporation service on M. R. Shwortzkopf, secretary of appellant, at its regular office in Wichita.
Appellant appeared specially and filed a motion to quash the service of summons for lack of the trial court's jurisdiction over appellant, which was overruled. Appellant, reserving therein the question of jurisdiction, then filed a motion to make definite and certain and to separately state and number the causes of action, which motion was overruled. A few days after the trial court had overruled the motion to make definite and certain, appellant, again reserving the jurisdiction question, filed a motion to strike, which was overruled as to the first twenty grounds, but the trial court required appellee to amend with respect to setting up the subject matter in addition to the conclusions set out in regard to pipe storage, which, in substance, sustained the last grounds of the motion to strike and also permitted appellee to add the word 'mutual', which made the account a mutual, open, current and running account.
An amended petition was filed to which the right of way agreement was attached and made a part thereof. To this appellant filed a motion to separately state and number, claiming the petition showed on its face that some of it was barred by the statute of limitations or, in the alternative, to strike certain portions of the petition, which were referred to by line numbers. The trial court sustained one part of the motion to strike marked IV and overruled parts I, II, III and V. Hence this appeal, which is based on the specifications of error that the trial court erred in
(1) overruling appellant's motion to quash service of summons on the Drillers Gas Company;
(2) entering judgment on October 14, 1954, overruling paragraph No. I of appellant's motion filed on December 30, 1953;
(3) entering judgment on October 14, 1954, overruling paragraph No. II of appellant's motion filed on December 30, 1953;
(4) entering judgment on October 14, 1954, overruling paragraph No. III of appellant's motion filed on December 30, 1953; and
(5) entering judgment on October 14, 1954, overruling paragraph No. V of appellant's motion filed on December 30, 1953.
Appellant contends that its motion to separately state and number or, in the alternative, to strike was an appealable order and in reality that...
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Sims' Estate, In re
...1015; Sheahan v. Kansas Power & Light Co., 172 Kan. 399, 241 P.2d 515; Marchant v. Layton, 173 Kan. 341, 245 P.2d 973; Vogt v. Drillers Gas Co., 178 Kan. 146, 283 P.2d 442; City of McPherson v. Smrha, 179 Kan. 59, 293 P.2d 239; Boettcher v. Criscione, 180 Kan. 39, 299 P.2d 806; Fogo v. Stee......
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Sherk's Estate, In re
...1015; Sheahan v. Kansas Power & Light Co., 172 Kan. 399, 241 P.2d 515; Marchant v. Layton, 173 Kan. 341, 245 P.2d 973; Vogt v. Drillers Gas Co., 178 Kan. 146, 283 P.2d 442; City of McPherson v. Smrha, 179 Kan. 59, 293 P.2d 239; Boettcher v. Criscione, 180 Kan. 39, 299 P.2d 806; Fogo v. Stee......
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Cheney v. Cheney
...such an order as would result in the final determination of the action. Miller v. Rath, 173 Kan. 192, 244 P.2d 1213; Vogt v. Drillers Gas Co., 178 Kan. 146, 283 P.2d 442. The appeal is It is so ordered. ...
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City of McPherson v. Smrha, 39873
...overruling a motion which was not a final order or equivalent to a demurrer was held not appealable, and likewise in Vogt v. Drillers Gas Co., 178 Kan. 146, 283 P.2d 442, it was held an order sustaining in part and overruling in part a motion to strike portions of an amended petition was no......