Estate of Schmitz v. Schmitz

263 P. 1045, 125 Kan. 115, 1928 Kan. LEXIS 284

• Court: Supreme Court of Kansas
• Decided: February 11, 1928
• Docket: No. 27,483; No. 27,484; No. 27,485
• Status: Published

Opinion

The opinion of the court was delivered by

Marshall, J.:

A motion has been filed by the plaintiffs in which they ask “that they be granted a rehearing in this case, and that the judgment be modified, at least to the extent of placing in the second classification of claims the judgment for George Schmitz in the sum of two'thousand dollars, and for Joseph Schmitz, Jr., in the sum of four thousand dollars.”

The plaintiffs now ask that that part of their elaims which arose for services prior to 1911 as claims of the second class under the law as it existed when Cawood v. Wolfley, 56 Kan. 281, 43 Pac. 236, was decided. That proposition was not presented to the probate court, the -district court, nor to this court until the motion for rehearing or modification was filed. If the plaintiffs intended to urge that point in this court, they should have presented it to the trial court. (Wilson v. Fuller, 9 Kan. 176; Koshka v. Railroad Co., 114 Kan. 126, 217 Pac. 293.) A number of other cases might be cited.

The petition for rehearing and for a modification of the judgment is denied.