Miller v. Miller

Citations

• 107 Kan. 505
• 192 P. 747
• 1920 Kan. LEXIS 107

Syllabus

<p>SYLLÁBUS BY THE COURT.</p> <p>1. Action for Partition — Contents of Summons. Except where the action is “on contract for the recovery of money” (Civ. Code, § 60), there is no requirement that the summons shall state the character of the action or the relief sought.</p> <p>2. Judgment — Conolusiveness of Judgment by Default. A judgment by default upon personal service of summons upon the defendant is as conclusive against him upon every matter admitted by the default as if he had personally appeared and contested the plaintiff’s right to recover. {Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079; Garrett v. Minard, 82 Kan. 338, 108 Pac. 80.)</p> <p>3. Action — To Set Aside Decree in Partition — Petition Fails to State Cause of Action. In a suit to set aside a decree in partition it was alleged that the defendant fraudulently caused a summons to be issued'and served upon plaintiff in which no claim was made for partition but simply notified him that he had been sued, and that this was done for the purpose of preventing him from attending the action and protecting his interests in the property; that he relied upon an oral agreement with the plaintiff for a division of the property and was not aware of the nature of the decree of partition until long after it had been rendered. Held, that the petition failed to state a cause of action and it was error to overrule a demurrer. {Bleakley v. Barclay, 75 Kan. 462, 469, 89 Pac. 906; Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079.)</p> <p>4. Pleadings — Petition Stating Several Causes of Action — Motion to Separately State and Number Should be Sustained. Where the petition states several causes of action, some sounding in contract and some in tort, and all blended and confused, it is error to overrule a motion to separately state and number.</p> <p>5. Action — Remanded for Further Proceedings. In the confused state of the pleading, the court will not undertake the task of determining whether