262 P. 1030 | Kan. | 1928
The opinion of the court was delivered by
Plaintiff brought this action against her sister-in-law to impress and enforce $,n implied trust on a considerable estate devised to defendant by her late husband, David Gibson, brother of plaintiff.
David’s will was made in 1908, about eleven years before he married defendant. He died in 1925. His will devised all his property to his “legal heirs,” and as he had no children the defendant assumed possession as beneficiary and also as administratrix with the will
The basis of plaintiff’s action was an alleged partnership consisting of plaintiff and her brother David. She alleged that this partnership had endured for some twenty-three years, pursuant to which she and her brother had accumulated lands; money, bank stock and other chattels, all of the approximate value of $150,000; that for the convenience of the alleged partners the title of this property had been held in the name of her brother; that she was the equitable owner of an undivided half of it and entitled to joint possession thereof with defendant. Plaintiff prayed for an adjudication of her interest, for joint possession, partition, and for an accounting of half the income since the death of David Gibson.
Plaintiff’s petition was subjected to motions to strike, demurrers and rulings which necessitated its being repeatedly amended.
Defendant’s answer contained a general denial and pleaded the death of her husband testate, the administration of his estate, the laches of plaintiff, the statute of limitations and the statute of frauds.
On these issues the cause was tried without a jury. At the conclusion of plaintiff’s evidence the trial court indicated its intention to sustain a demurrer thereto; whereupon plaintiff by leave of court amended her petition and reoffered her evidence; and the cause was adjourned from February 15, 1927, until May 25,- 1927, at which time defendant presented her evidence and plaintiff submitted evidence in rebuttal. The cause was then taken under advisement until June 23, 1927, at which time the trial court made a general finding—
“That the plaintiff is not entitled to recover herein and that the defendant is entitled to judgment against the plaintiff for costs.”
Judgment was entered accordingly, and plaintiff appeals, assigning various errors which will be noted.
The first error assigned relates to the trial court’s ruling on defendant’s motion to strike out certain allegations of plaintiff’s original petition. It is not shown, however, that the stricken matter prejudicially narrowed the scope of plaintiff’s cause of action, nor that she was limited in her proof because of its elimination. If the ruling adversely affected some material phase of the merits of the action, it should have been brought to this court for review as an intermediate appealable order. (Grain Co. v. Cooperative Ass
The next error urged pertains to the sustaining of defendant’s demurrer to plaintiff’s evidence at the conclusion of the hearing on February 15, 1927. It seems, however, that this ruling was acquiesced in, because when that ruling was made plaintiff dismissed her first cause of action, and asked and obtained leave to amend (Miles v. Hamilton, 106 Kan. 804, 189 Pac. 926); following which, the trial court upheld the petition as amended as against defendant’s motions and demurrer leveled against it, and overruled defendant’s demurrer to the evidence reoffered by plaintiff in its support. Moreover, it is not uncommon for a trial court to change its rulings in the course of a trial, and ordinarily error cannot be predicated thereon if the final result is correct. (Van Deren v. Heineke & Co., 122 Kan. 215, 218, 252 Pac. 459.)
Passing for the moment the third and most serious error assigned, we note plaintiff’s objection to the trial court’s ruling that defendant was entitled to a continuance from February to May, and to an allowance of costs, following the granting of leave to plaintiff to amend her petition. But the granting of a continuance with or without costs, like the allowance of amendments to pleadings, is vested in the trial court’s discretion, and unless that discretion is manifestly abused — and certainly nothing like that appears in this record — no basis for reversible error is established. (Hottenstein v. Conrad, 9 Kan. 435.)
The crucial feature of this lawsuit, however, depends on what merit there may be in plaintiff’s third assignment of error based on the trial court’s general finding and judgment that plaintiff’s evidence failed to prove a contract, express or implied, between the plaintiff and the deceased, David Gibson.
So far as concerns the facts alleged in plaintiff’s last amended petition, it may be conceded-that substantial evidence was introduced tending to show a partnership arrangement of some sort between Edith Cox and her brother David Gibson. The story of the accumulation of this considerable estate was the usual narrative of successful pioneering in this state. An emigrant father and mother came to Edwards county in early days, secured a homestead and
Be that as it may, there was evidence which militated heavily against that adduced in plaintiff’s behalf. The fact that not in twenty-three years was there any settlement between the alleged partners was not without probative significance. When Edith married, David gave her a section of land worth $11,200 according to the prices then prevailing, and designated the consideration as a gift for love and affection. Was David showing his love and affection for his favorite sister by conveying and designating as an outright gift a valuable property of which she was already an equal owner with himself? Then there was the seemingly credible testi
So whatever rulings the trial court made in the course of the trial to which technical exceptions might be taken, the one thing that stands out in this record is that the fact-finding tribunal resolved the controlling and disputed issue of fact against the plaintiff.
And this leaves nothing of importance to discuss. Plaintiff would make something out of a letter written by the trial judge to the various counsel representing the litigants. In it are discussed the judge’s views of constructive and resulting trusts, and he comments on what he conceives to be the insufficiency of the evidence. Counsel for appellant contends that this letter shows that the trial judge misconceived the nature of the lawsuit. Be that as it may, the con
“Without attempting to place the decision in this case upon any one of the particular things discussed in this letter, but taking them all together, it is my conclusion that the defendant should have judgment for costs.”
Even if the judge’s letter had indicated some fallacious ideas on the nature of trusts, no basis of error could be predicated thereon. (Quinton v. Kendall, 122 Kan. 814, 823, syl. ¶ 11, 253 Pac. 600.)
The record discloses no error which would either compel or permit this judgment to be disturbed.
The judgment is affirmed.