39 Kan. 649 | Kan. | 1888
When this ease was called for trial, the defendant, E. H. .Sanford, objected to the introduction of any evidence, for the reason that the petition did not state facts sufficient to constitute a cause of action; which objection the court overruled. The defendant excepted. This matter is now forcibly presented upon the motion for a rehearing. The petition to quiet title was filed under § 594 of the civil code, which reads:
“An action may be brought by any person in possession, by himself or tenant, of real property, against any person who claims an estate, or interest therein, adverse to him, for the purpose of determining such adverse estate or interest.”
Sanford demurred to the petition, upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, but no exceptions were taken,
Considering all of the pleadings in the case, we are not called upon to decide whether in a petition under said § 594 of the code it is necessary to set out the nature of the defendant’s claim, and the grounds of its invalidity. Had the defendant stood upon his demurrer, or taken exceptions to the overruling of the same, this question would be fairly presented for our determination. The defects, if any there were in the-petition, were cured by the subsequent pleadings. (Irwin v. Paulett, 1 Kas. 418, 424; Barrett v. Butler, 5 id. 355; Mitchell v. Milhoan, 11 id. 617, 626; Campbell v. Coonradt, 22 id. 704; Clay v. Hildebrand, 34 id. 695, 703, 704. See also Entreken v. Howard, 16 Kas. 551.) Counsel cite in opposition to this view, as decisive, Douglass v. Nuzum, 16 Kas. 515. It must be borne in mind that the action of Douglass v. Nuzum was not under the statute, and in that case the answer set up full title in the defendant. Here the action was under § 594 of the code, and the allegations of the answer are an equitable interest by Sanford in the premises, with notice thereof to the plaintiffs. Section 140 of the code provides:
“The court, in every stage oí action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”
In the original motion filed in the case, (38 Kas. 323,) the parties were improperly transposed, and the opinion will be corrected so as to read: “ This was an action brought by Henry M. and Joel P. Weeks against Ephraim H. Sanford.”
The motion for rehearing will be overruled.