Willmeth v. Harris
| Decision Date | 09 May 1964 |
| Docket Number | No. 43679,43679 |
| Citation | 193 Kan. 111,392 P.2d 101 |
| Parties | Earl WILLMETH, Jack Byers and Joe E. Fobes, Appellants, v. Neal C. HARRIS, V. E. Tullar and Ray Dietz, County Commissioners in and for Jewell County, Kansas, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A trial court has no authority to hold a pretrial conference, hear testimony and determine factual issues as preliminary to a determination of a ruling on a demurrer to a petition.
2. Stipulations between the parties may be considered in determining a ruling on a demurrer when, but only when, the stipulation is incorporated in, or made a part of, the petition.
3. Where a demurrer is sustained to plaintiffs' petition and plaintiffs' amended petition is stricken from the files, and an appeal is perfected from the order striking the amended petition and also the order sustaining the demurrer, the order sustaining the demurrer may be reviewed even though the appeal was filed more than two months after the order under the provisions of G.S.1961 Supp., 60-3314a.
Tweed W. Ross, Beloit, for appellants.
Robert H. Meyer, County Atty., Jewell County, argued the cause, and John S. Dean, Jr., and B. L. Pringle, Topeka, Geo. E. Teeple, L. E. Weltmer, L. M. Weltmer, and Roderick E. Weltmer, Mankato, were with him on the briefs, for appellees.
HATCHER, Commissioner.
This appeal stems from an action to enjoin a tax levy and a bond issue for the purchase of a site and the erection of a long-term care and convalescent county hospital thereon. The plaintiffs challenge the validity of the notice of the election, the validity of the ballot used in the election and the validity of the declared results of the election. They also challenge the validity of the purpose of the election and the purpose for which the bonds were to be used.
The questions for consideration in this appeal involve only facts pertaining to procedural matters. The pertinent facts are not in dispute.
On November 6, 1962, the Board of County Commissioners of Jewell County, Kansas called a special election on the question of a two mill levy for the purchase of a site, or sites, and the erection of a long-term care and convalescent county hospital thereon, in the city of Mankato, Jewell County, Kansas. The election was called pursuant to G.S.1961 Supp., 19-1801.
According to the official election canvass, the proposition for the levy resulted in 1689 votes for and 1687 votes against.
On December 3, 1962, the plaintiffs filed their petition in this action. The petition will be summarized. It first alleged the status and qualifications of the plaintiffs to bring the action, and that the defendants advertised for bids and had offered to sell on December 4, 1962, and if not restrained would sell, bonds and credits of Jewell County, Kansas.
The petition challenged the validity of the action of the defendants on numerous grounds. It contended that G.S.1961 Supp., 19-1801 et seq., was not authority for the county to construct a long-term care and convalescent county hospital; that the petition for the election was equivocal, ambiguous and misleading as well as illegal as to form and content; that the ballots, a copy of which was attached to the petition, were equivocal, ambiguous and misleading as to the purpose for which the tax was to be levied and was contrary to and in conflict with the provisions of the statute above mentioned; that the statement in the ballot concerning the possibility of money in any amount being furnished by a federal agency was unnecessary, improper, illegal and misleading, and that there were only a majority of two votes cast in favor of the tax levy and that eight persons, who were named, illegally cast votes in favor of the tax levy and their vote was sufficient to change the result of the election.
On December 19, 1962, the defendants demurred to the petition stating as their grounds for the demurrer that there was a misjoinder of cause of action and 'for the further reason that said petition does not state facts sufficient to constitute a cause of action against the defendants and in favor of the plaintiffs.'
The bizarre proceedings which followed should next receive our attention.
On January 3, 1963, a pretrial conference was held on the demurrer. At the conference a stipulation was entered into by counsel for the parties. We quote from the supplemental counter abstract of the appellees:
'Mr. Ross: The plaintiffs stipulate that fifty (50) sample ballots were case (sic) and counted in Buffalo Township, Jewell County, Kansas, on this election of November 6th, 1962.
'Mr. Teeple: It is agreed between the parties, that the court may pretry the validity or legality of the votes that were case (sic) on yellow ballots, and determine the count resulting from any decision that he may make as to their validity.
'And, that his determination shall be considered as an established fact in this case, and be considered upon his ruling on the demurrer now pending before him.
' ' (Emphasis supplied.)
On January 16, 1963, a hearing was held to consider the yellow sample ballots which were voted in Buffalo Township. Counsel for defendants opened with the following statement:
Counsel for plaintiffs made no objection to the procedure but did appear to believe that only evidence pertaining to the validity of the sample ballots was to be considered. His opening statement reads in part:
The defendants called the ten witnesses mentioned in the opening statement. They testified as to the means by which the yellow sample ballots were placed in the hands of the voters and reached the ballot box. After the introduction of the testimony the following occurred:
'The Court: Your request is granted.
'Mr. Teeple: The court orders the clerk to bring up the ballot bag and open it?
'The Court: Yes, I want to decide every phase of this issue that is being tried.
'
'Mr. Teeple: The unused or spoiled ballots can be taken out and delivered to the County Clerk and that he be, from now on, held accountable for those?
'The Court: All right, it is so ordered.
'(The ballot sack was opened, and the ballots counted)
'Mr. Ross: May it be stipulated thirty-seven (37) against the levy and nine (9) for the levy?'
On February 23, 1963, the district court made and filed extended findings of fact and conclusions of law, and based thereon concluded that the demurrer to the petition should be sustained. The court appears to have given very little consideration, if any, to the allegations of the petition.
On March 11, 1963, the plaintiffs filed an amended petition which added additional paragraphs and extended many of the paragraphs previously alleged. On March 12, 1963, the defendants filed a motion to strike the amended petition from the files for the reason that it stated no new actionable matter and that:
'The amended petition, including the findings and orders of the court made under the stipulation of the parties, fails to state any new or different cause of action than that attempted to be stated in the original petition.'
On April 6, 1963, the district court sustained the motion to strike and decreed as follows:
'IT IS THEREFORE BY THE COURT ORDERED, ADJUDGED AND DECREED that the defendants' motion to strike plaintiffs' amended petition as amended from the files should be and the same is hereby sustained; that the county clerk of Jewell County, Kansas, is authorized and directed to permit the plaintiffs to examine the declarations filed by sick and disabled voters in the November 6, 1962 election, and plaintiffs are granted ten days from April 3, 1963 in which to file another amended petition.'
The plaintiffs then appealed. They specify as error...
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Willmeth v. Harris
...entered in defendants' favor, plaintiffs appeal. This is the second chapter in this case, and for further facts see Willmeth v. Harris, 193 Kan. 111, 392 P.2d 101. As to plaintiffs' first contention that the wording of the ballot fails to comply with G.S.1961 Supp., 19-1801 et seq., the per......