Martindale v. Battey

Citations

• 73 Kan. 92
• 84 P. 527
• 1906 Kan. LEXIS 212

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgment — On the Sustaining of a Demurrer — Final Determination. A judgment for the defendant upon the sustaining of a demurrer, to a petition is a final determination of the action, and until such judgment is set aside no further proceedings can be had therein looking to a trial of the issues between the parties.</p> <p>2. -Power to Set Aside. After, the expiration of the term at which a judgment is rendered the court has no power to set it aside because of its being based on an erroneous ruling.</p> <p>3. Practice, District Court — Amendment of the Record. Where a demurrer which attacks a petition up on several grounds is sustained upon one of them, and a judgment for defendant is thereupon rendered, but the record then made shows only that the demurrer was sustained, without indicating upon what ground, the court may at a subsequent term cause the record to be amended so as to state upon what ground the demurrer was sustained, provided the fact be established by clear and satisfactory proof, which need not, however, be founded upon any record, memorandum or other writing.</p> <p>4. - Separate Petitions Not to be Filed after Final Judgment on Sustaining Demurrer for Misjoinder. A demurrer was filed to a petition on several grounds, including misjoinder and want of facts, and a record was made showing that the demurrer was sustained but not indicating upon what ground; a judgment for defendant was rendered which was affirmed by this court for the reason that the petition . contained two causes of action which were improperly joined; at a subsequent term of the district court the plaintiff asked that the record be amended to show that the demurrer was in fact sustained upon the sole ground that the petition failed to state facts sufficient to constitute a cause of action, and also that he be permitted to file separate petitions and proceed with the prosecution of the two causes. Held, that while the plaintiff was entitled to have