Branch v. American National Bank

Supreme Court of Kansas

Branch v. American National Bank

47 P. 516, 57 Kan. 608, 1897 Kan. LEXIS 7

CourtSupreme Court of Kansas

DecidedJanuary 8, 1897

DocketNo. 9188

StatusPublished

Cited by1 cases

This text of 47 P. 516 (Branch v. American National Bank) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Branch v. American National Bank, 47 P. 516, 57 Kan. 608, 1897 Kan. LEXIS 7 (kan 1897).

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Opinion

Johnston, J.

W. T. Branch was appointed assignee of the Security Investment Company of Cawker City in February, 1891, and made his first annual statement or report in March, 1892. Branch v. American Nat. Bank, ante, p. 27. In 1893 he made his second annual report; and on April 17, which was the first day of the April, 1893,.term of the District Court, he obtained an ex parte order approving and allowing the report. Three days later, during the [609]*609same term of court, the creditors appeared and asked that the order be set aside and the approval and allowance of the report be reopened for consideration. The application was granted and the matter was set down for hearing at a fixed time, due notice of which .was required to be given. This ruling is assigned for error ; but, is it reviewable?

The estate is unsettled, and the question of the approval of the report is before the District Court for determination. The ex parte order, which may have been improvidently granted, was promptly set aside, leaving the matter open for consideration upon the merits at an early day, when all interested parties could appear and be heard. The ruling re-opening the matter is not a final order, nor is it one of the reviewable orders mentioned in the Code. §§542, 543 Civil Code; McCulloch v. Dodge, 8 Kan. 476; Short v. Nooner, 16 id. 220; Kermeyer v. K. P. Rly. Co., 18 id. 215; Flint v. Noyes, 27 id. 351. See also, Branch v. American National Bank, supra. The questions argued by the plaintiff in error are therefore not open to our consideration ; but even if the ruling were reviewable, it would hardly avail the plaintiff, as the District Court is invested with a wide and extended discretion in opening up and in revising or setting aside orders during the term at which such orders are made. The State v. Hughes, 35 Kan. 626; The State, ex rel., v. Sowders, 42 id. 312.

The proceedings in error will be dismissed.

All the Justices concurring.

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Johnston, J.

W. T. Branch was appointed assignee of the Security Investment Company of Cawker City in February, 1891, and made his first annual statement or report in March, 1892. Branch v. American Nat. Bank, ante, p. 27. In 1893 he made his second annual report; and on April 17, which was the first day of the April, 1893,.term of the District Court, he obtained an ex parte order approving and allowing the report. Three days later, during the [609]*609same term of court, the creditors appeared and asked that the order be set aside and the approval and allowance of the report be reopened for consideration. The application was granted and the matter was set down for hearing at a fixed time, due notice of which .was required to be given. This ruling is assigned for error ; but, is it reviewable?

The estate is unsettled, and the question of the approval of the report is before the District Court for determination. The ex parte order, which may have been improvidently granted, was promptly set aside, leaving the matter open for consideration upon the merits at an early day, when all interested parties could appear and be heard. The ruling re-opening the matter is not a final order, nor is it one of the reviewable orders mentioned in the Code. §§542, 543 Civil Code; McCulloch v. Dodge, 8 Kan. 476; Short v. Nooner, 16 id. 220; Kermeyer v. K. P. Rly. Co., 18 id. 215; Flint v. Noyes, 27 id. 351. See also, Branch v. American National Bank, supra. The questions argued by the plaintiff in error are therefore not open to our consideration ; but even if the ruling were reviewable, it would hardly avail the plaintiff, as the District Court is invested with a wide and extended discretion in opening up and in revising or setting aside orders during the term at which such orders are made. The State v. Hughes, 35 Kan. 626; The State, ex rel., v. Sowders, 42 id. 312.

The proceedings in error will be dismissed.

All the Justices concurring.

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Bluebook (online)

47 P. 516, 57 Kan. 608, 1897 Kan. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/branch-v-american-national-bank-kan-1897.

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