116 Kan. 463 | Kan. | 1924
The opinion of the court was delivered by
Charlotte Hoth died intestate in 1920. Her only heirs were her children, Henry Hoth and Minnie C. Scholz, the wife of the defendant, S. G. Scholz. Minnie C. Scholz died intestate in July, 1921, leaving as her only heir her husband, S. G. Scholz. In May, 1916, S. G. Scholz and Minnie C. Scholz executed a note for $7,621, payable to Charlotte Hoth. That note was secured by a mortgage on real estate owned by S. G. Scholz and Minnie C. Scholz. The plaintiff, as administrator of the estate of Charlotte Hoth, commenced this action against S. G. Scholz to recover on the note and to foreclose the mortgage. The defendant pleaded that the note had been partly paid by services rendered to Charlotte
There were two trials in the district court. On the first trial a demurrer to the evidence of the defendant was sustained, and judgment was rendered in. favor of the plaintiff. On the motion of the defendant, a new trial was granted at a subsequent term of court. No appeal was then taken from the judgment granting a new trial.
1. The first matter presented is that the court committed error in granting a new trial after rendering judgment on a demurrer to the evidence of the defendant. If error was committed, an appeal should have been taken at that time. None was taken. The order granting a new trial was made on July 1, 1922. This appeal was filed on June .19, 1923, more than six months after the order granting a new trial had been made. The appeal from the order granting a new trial was not taken in time.
2. Charlotte Hoth lived in the home of the defendant S. G. Scholz for a number of years. While there Charlotte Hoth became-feeble-minded and had to be cared for as a child. It does not appear that any guardian of her person or estate was ever appointed. For the services rendered in caring for Charlotte Hoth, S. G. Scholz claimed $9,420. No contract by Charlotte Hoth to pay for the services rendered to her by Minnie C. Scholz and S. G. Scholz was
The judgment is reversed, and the trial court is directed to render judgment in favor of the plaintiff for the full amount of the note sued on and interest théreon and the amount found due the plaintiff on the accounting, and to deny relief to the defendant on the counterclaim set up by him.