Engstrom v. Tyler

Supreme Court of Kansas

Engstrom v. Tyler

46 Kan. 317

CourtSupreme Court of Kansas

DecidedJanuary 15, 1891

StatusPublished

Cited by4 cases

This text of 46 Kan. 317 (Engstrom v. Tyler) 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

Engstrom v. Tyler, 46 Kan. 317 (kan 1891).

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Opinion

Opinion by

Strang, C.:

Emma J. Tyler commenced this action before a justice of the peace in McPherson county to recover $135 and interest thereon, for rent alleged to be due her from the defendants below. The case was tried before a justice, resulting in a judgment for the plaintiff in the sum of $136.57. From this judgment the defendants therein appealed to the district court, where they filed an answer to the plaintiff’s bill of particulars. A demurrer was interposed to such answer, and by the court sustained. Afterward the defendants filed an amended answer, to which the plaintiff below again demurred. This second demurrer was also sustained. To the ruling of the court sustaining this demurrer the defendants below objected and saved an exception, and the case comes here for review of the ruling on said demurrer. The amended answer filed in the court below reads as follows:

“Defendants say that they deny that they are indebted to the plaintiff in the amount sued for, or in any other sum of [318]*318money whatsoever, for the following reasons: Prior to August 1, 1888, the date when the installment of rent herein sued for is alleged to have fallen due, defendants fully and completely abandoned and vacated the premises described in the plaintiff's bill of particulars, and released all claims of possession or right to them, and plaintiff resumed possession and control of said premises, leased them to various and divers parties, collecting and retaining the rent for the same in all respects the same as she did before the date of the alleged lease to the defendants, and has at all times since assumed and retained full and complete control of, the premises; and defendants allege that, by reason of the vacation of the premises by them, and reoccupying and control of them by the plaintiff, a cancellation of said lease was then and there perfected by operation of law.''

While this answer is not well drawn, yet we think it states a cause of defense at least to some part of the plaintiff's claim, and should have been held good as against a demurrer.

It is therefore recommended that the judgment of the court below be reversed, and the cause remanded for further proceedings.

By the Court: It is so ordered.

All the Justices concurring.

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Opinion by

Strang, C.:

Emma J. Tyler commenced this action before a justice of the peace in McPherson county to recover $135 and interest thereon, for rent alleged to be due her from the defendants below. The case was tried before a justice, resulting in a judgment for the plaintiff in the sum of $136.57. From this judgment the defendants therein appealed to the district court, where they filed an answer to the plaintiff’s bill of particulars. A demurrer was interposed to such answer, and by the court sustained. Afterward the defendants filed an amended answer, to which the plaintiff below again demurred. This second demurrer was also sustained. To the ruling of the court sustaining this demurrer the defendants below objected and saved an exception, and the case comes here for review of the ruling on said demurrer. The amended answer filed in the court below reads as follows:

“Defendants say that they deny that they are indebted to the plaintiff in the amount sued for, or in any other sum of [318]*318money whatsoever, for the following reasons: Prior to August 1, 1888, the date when the installment of rent herein sued for is alleged to have fallen due, defendants fully and completely abandoned and vacated the premises described in the plaintiff's bill of particulars, and released all claims of possession or right to them, and plaintiff resumed possession and control of said premises, leased them to various and divers parties, collecting and retaining the rent for the same in all respects the same as she did before the date of the alleged lease to the defendants, and has at all times since assumed and retained full and complete control of, the premises; and defendants allege that, by reason of the vacation of the premises by them, and reoccupying and control of them by the plaintiff, a cancellation of said lease was then and there perfected by operation of law.''

While this answer is not well drawn, yet we think it states a cause of defense at least to some part of the plaintiff's claim, and should have been held good as against a demurrer.

It is therefore recommended that the judgment of the court below be reversed, and the cause remanded for further proceedings.

By the Court: It is so ordered.

All the Justices concurring.

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Bluebook (online)

46 Kan. 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/engstrom-v-tyler-kan-1891.

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