Wilson v. Evans
| Decision Date | 07 November 1959 |
| Docket Number | No. 41466,41466 |
| Parties | Henry P. J. WILSON, Administrator de bonis non of the Estate of Charles D. Evans, Deceased, Appellee, v. R. L. EVANS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Where appellant in his notice of appeal fails to appeal from the order overruling the motion for a new trial, this court will not review trial errors, but may review orders made upon demurrers to the evidence if those orders are specified as error in the notice of appeal and also contained in the specification of errors in the abstract.
2. A certain writing set out in the opinion is considered and held to amount in effect to a nonnegotiable note, and that the defendant failed to show lack of consideration therein or that the note was barred by the statute of limitations. Therefore, a demurrer was properly sustained to defendant's evidence.
Frank S. Hodge Hutchinson, argued the cause and Eugene A. White, Robert Y. Jones and H. Newlin Reynolds, Hutchinson, were with him on the briefs, for appellant.
Pual R. Wunsch, Kingman, argued the cause, and Clyde Raleigh, Hutchinson, and Charles H. Stewart, Kingman, were with him on the briefs, for appellee.
The plaintiff-appellee brought an action for $110,000 against the defendant-appellant in the trial court based upon the writing set out below:
'R. L. Evans & Son
'Pay Line Holsteins
'R. F. D. #2
'Hutchinson, Kansas
'May 31, 1953
'I owe C. D. Evans $50,000.00 on the Paul Woolfolk loan at Towner, Colo., and $60,000.00 on Gebhardt & Simmons loan at Salina, Kansas.
'Signed
'R. L. Evans'.
In the petition plaintiff alleged that the above instrument constituted a 'writing of indebtedness made, executed and delivered' by the defendant. The action was begun on May 31, 1958, five years from the date of the above writing.
The defendant first demurred to the petition, and after the demurrer had been overruled, answered setting up the affirmative defenses, which may be summarized as: 1. Lack of consideration; 2. the obligation had been subsequently canceled by the obligee; 3. the claim that the indebtedness was barred by the statute of limitations.
These defenses were put in issue by plaintiff's reply.
A jury trial opened with the plaintiff introducing the written contract sued upon and resting. To this the defendant again demurred, and the court overruled the demurrer. The court further ruled that the defendant had the burden of proof in establishing his defenses and should proceed with his evidence.
The defendant introduced little evidence upon his part, but seemed to admit that at the time of the signing of the written instrument sued upon, he owed the antecedent debts and had originally received the money thereon. No evidence was admitted over the objections of plaintiff as to the question of cancellation of the instrument. At the close of defendant's evidence, plaintiff demurred thereto on the ground that defendant had failed to prove his defenses. The court discharged the jury and took the case under advisement, apparently to consider the demurrers to the evidence by both parties. Within due time, the trial court entered judgment for plaintiff, and defendant has appealed.
Plaintiff has raised a preliminary matter by a motion to dismiss based upon the ground that defendant has failed to include in the notice of appeal the order overruling the motion for new trial. The books are full of cases upon this question, and it is clear that such an appeal fails to raise trial errors but that demurrers to the evidence and certain other matters raising only questions of law may be reviewed, if specified in the notice of appeal and specification of errors. Attention is directed to the recent case of Marshall v. Bailey, 183 Kan. 310, 327 P.2d 1034, and other authorities cited.
Without laboring the matter, it would seem the only questions raised in this appeal are whether the court erred in passing upon the two demurrers to the evidence. That question would seem to turn upon the nature of the written instrument set out at the beginning of this opinion.
The learned trial judge in a memorandum held that the written instrument in this case amounted substantially to a nonnegotiable note; that the plaintiff might base his cause of action thereon and that the action begun within five years from the making of the note was not barred by the statute of limitations.
The trial court cited Miller v. Jones, 137 Neb. 605, 290 N.W. 467, 468, 127 A.L.R. 646; and the annotation in 127 A.L.R. 650 as being of rather controlling authority. We agree with the trial court.
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