Wahl v. Walsh, 39504

• Decision Date: 11 December 1954
• Docket Number: No. 39504,39504
• Citation: 177 Kan. 176,277 P.2d 623
• Parties: Gary Theodore WAHL, by Doris Gilbertson Wahl, His Guardian, Appellee, v. Capt. Theodore H. WALSH, Appellant.
• Court: Kansas Supreme Court

Page 623

277 P.2d 623

177 Kan. 176

Gary Theodore WAHL, by Doris Gilbertson Wahl, His Guardian, Appellee, v. Capt. Theodore H. WALSH, Appellant.

No. 39504.

Supreme Court of Kansas.

Dec. 11, 1954.

Syllabus by the Court

1. A defendant may demur to a petition only when some one of the defects enumerated in G.S.1949, 60-705, appears on the face of the petition. A general demurrer to a petition challenges only the sufficiency of the particular facts alleged to state a cause of action and cannot serve to bring additional facts into the petition which might constitute a defense thereto.

2. In an action by a minor child, by its mother and guardian, against the father of the child for support, the petition is examined and it is held: A general demurrer thereto was properly overruled.

William W. Dimmitt, Jr., Topeka, argued the cause, and Edward Rooney, Jacob A. Dickinson and David Prager, Topeka, were with him on the briefs, for appellant.

Chas. H. Bradbury, Topeka, argued the cause, and Willard B. Rogers, Topeka, was with him on the briefs, for appellee.

PRICE, Justice.

This is an action by a minor child, by its mother and guardian, against the father of the child for support.

Defendant has appealed from an order overruling his demurrer to the petition.

On account of our disposition of the case, it is deemed advisable to set out the petition in full, omitting caption and signature:

'Comes now the plaintiff, Gary Theodore Wahl, by Doris Gilbertson Wahl, his mother and guardian, said Doris Gilbertson Wahl being the legally appointed guardian of said Gary Theodore Wahl, a minor, by appointment in the Superior Court of the State of Washington, for the County of King, in Probate, by Judge Lloyd Shorett, judge of said court, the order of said court dealing therewith being upon file in said court beneath case number 129573, said order being dated July 30, 1953, a certified copy of which is hereto attached and by this reference expressly incorporated herein; and for cause of action against defendant states and avers:

'1. That the plaintiff, Gary Theodore Wahl is a minor of the age of two years who resides at: 917 James St., Seattle 4, Washington, and prosecutes this action by his legally appointed guardian.

'2. That the defendant, Capt. Theodore H. Walsh, is the father of plaintiff; that plaintiff has no means with which to support himself and is too young to work, and is in destitute and necessitous circumstances.

'3. That defendant has refused and still refuses to contribute in any way or manner to plaintiff's support; that defendant is an able-bodied man, regularly employed by the United States Air Force and is able to support plaintiff.

'4. That the reasonable amount of money necessary to support plaintiff at this time is $1,500.00 per year or $125.00 per month.

'Wherefore, plaintiff prays that defendant be ordered by this court to pay unto the plaintiff $1,500.00 per year or $125.00 per month for support of plaintiff; and that the court grant all proper equitable relief in the premises.'

No motions were levelled at the petition and defendant's demurrer was on the ground that it failed to state a cause of action in favor of plaintiff and against defendant.

We are not advised of the reasoning of the trial court in overruling the demurrer.

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