Wilson v. Kansas Turnpike Authority

• Decision Date: 09 November 1957
• Docket Number: No. 40650,40650
• Citation: 181 Kan. 1025,317 P.2d 843
• Parties: Clyde WILSON, Appellee, v. The KANSAS TURNPIKE AUTHORITY, Appellant.
• Court: Kansas Supreme Court

Page 843

317 P.2d 843

181 Kan. 1025

Clyde WILSON, Appellee, v. The KANSAS TURNPIKE AUTHORITY, Appellant.

No. 40650.

Supreme Court of Kansas.

Nov. 9, 1957.

Syllabus by the Court

1. Under the provisions of G.S.1955 Supp. 60-3314a, where a defendant appeals from an adverse ruling on his demurrer to the petition he may have a review of all prior adverse rulings of which he complains if such rulings are included in his notice of appeal. Following Bortzfield v. Sutton, 180 Kan. 46, 229 P. 584; Smith v. Wright, 180 Kan. 584, 305 P.2d 810.

2. The record, on an appeal from an order overruling a demurrer to the petition and from other orders overruling prior motions, in an action to recover damages to personal property resulting from construction activities on the Kansas Turnpike examined in the light of the facts, conditions and circumstances set forth at length in the opinion and held to disclose no reversible error.

James W. Putnam, Emporia, and Bruce Works, Topeka, argued the cause, and Robert M. Cowger, and Thomas W. Cunningham, Topeka, and Richard Mankin, Emporia, were with them on the briefs for appellant.

Everett E. Steerman and Elvin D. Perkins, Emporia, argued the cause and were on the briefs for appellee.

PARKER, Chief Justice.

This action was commenced in the district court of Lyon County against the Kansas Turnpike Authority to recover damages claimed to have been sustained by the plaintiff to his personal property as the result of construction activities on the Kansas Turnpike. The cause is here on an appeal by the Authority from an order of the district court overruling a demurrer to the petition and from other orders overruling prior motions.

It is neither necessary nor required that we detail allegations of the petition. Highly summarized, and given the benefit of all reasonable inferences to which it is entitled in the absence of any motions to make it more definite and certain, that pleading states that on all dates in question plaintiff was the owner of a building and foundation on which it was situated; that the Authority condemned the land on which such property was located; that as a result of the condemnation and appropriation of the land plaintiff was forced to raise and remove his building in order to protect the same from destruction; and that by reason thereof he sustained damages and is entitled to recover a sum equal to the costs of the removal and relocation of such building.

Following commencement of the action the Authority filed a motion in district court which, without asking for any relief whatsoever, merely recited that it appeared specially for the purpose of stating to the court that such court was without jurisdiction, the only proper jurisdiction being the County of Shawnee. When this motion was overruled the Authority filed a motion to strike the entire petition from the files on the ground plaintiff's cause of action was res judicata. Following this action the Authority moved to strike all allegations relating to damages claimed for the moving of the building and construction of a new foundation as vague, indefinite and uncertain and for the reason they did not state a proper measure of damages recoverable by law. This motion was also overruled. Thereupon the Authority demurred to the petition on the ground it failed to state facts sufficient to constitute a cause of action. When this demurrer was overruled it perfected the instant appeal, specifying in its notice of appeal that it was appealing from each of the foregoing rulings and orders.

At the outset it should be noted that in both his brief and on oral argument appellee contends that none of the trial court's rulings on the three motions heretofore mentioned is an appealable order under our decisions, hence such rulings must wait final determination of the cause before they can be subject to appellate review. This contention cannot be sustained. Under the provisions of G.S.1955 Supp. 60-3314a, and decisions (e. g., Bortzfield v. Sutton, 180 Kan. 46, 299 P.2d 584; Smith v. Wright, 180 Kan. 584, 305 P.2d 810) construing its force and effect, where a defendant appeals from an order overruling a demurrer to the petition he may have a review of all prior adverse rulings of which he complains when--as here--he includes such rulings in his notice appeal.

Having reached the conclusion all rulings complained of are subject to appellate review we are next faced with appellee's contention that all of the motions giving rise thereto must be classified as attacks in the nature of demurrers against the sufficiency of the petition, hence the propriety of such rulings must be determined from facts appearing on the fact of the petition in like manner and under the same rules as the propriety of the order overruling the demurrer to that pleading must be determined. Limited to the record presented we have concluded appellee's position on this point has merit and must be upheld. We therefore proceed on that premise in disposing of claims made by appellant as grounds for reversal of the involved rulings in the order in which they appear in his specifications of error.

First it is urged that the trial court erred in finding it had jurisdiction of the action. Heretofore we indicated that in view of its form and the record presented we are convinced the most that can be said for appellant...