Beloit Building Co. v. Quinn

44 P.2d 232, 141 Kan. 762, 1935 Kan. LEXIS 234

Opinion

The opinion of the court was delivered by

Hutchison, J.:

Our attention has been called, in the petition of the appellees herein for a rehearing, to the inaccuracy of the following sentence in the paragraph next to the closing one of the opinion, viz., “It was not passed upon by the trial court,” referring to the regularity of the action of the arbitrators in making and reaching an award, and to the fact that such matter was involved in the decision rendered on May 25, 1933, in sustaining a demurrer to the petition, from which ruling no appeal was taken. Leave of court, however, was granted to file an amended petition which repleaded each and every part of the original petition and alleged additional equitable grounds for specific performance and injunction, some of which concerned the making and reaching of the award. The appeal to this court was, of course, limited to matters involved in the amended petition and subsequent pleadings, and therefore the ruling on the demurrer to the original petition was not being reviewed in this court. Strictly speaking, the matter referred to had been passed upon, as appellees state, and therefore the sentence should be and is eliminated from the opinion.

This, however, does not change the result. The sustaining of the demurrer to the original petition was not res adjudicata nor conclusive, because the trial court at once granted plaintiff leave to file an amended petition, which it did, and it contained every allegation contained in the original petition and many additional allegations.

The petition for rehearing is denied.