Hayner v. Trott

46 Kan. 70

• Court: Supreme Court of Kansas
• Decided: January 15, 1891
• Status: Published

Opinions

Opinion by

Strang, C.:

The plaintiffs filed a claim in the probate court of Davis — now Geary — county against the defendants for $377.62. The defendants demurred to the statement of the claim as filed, which demurrer was sustained. The plaintiffs excepted to the action of the court in sustaining said demurrer, and took the matter to the district court on error. At the September term, 1888, the district court affirmed the action of the probate court, and the plaintiffs come to this court with a transcript, asking that the whole matter be reviewed and corrected here.

There are two questions involved in this matter: The first is, whether the statement of the claim filed by the plaintiffs in error in the probate court was sufficient to require the said court to consider it. While the claim as presented to the probate court is not well stated, and in fact is defectively stated, we do not think it is so defectively stated as not to amount to a statement of a claim at all; and if it amounted to a claim at all in favor of the plaintiffs and against the defendants, it was good against a demurrer. We therefore think the district court erred in affirming the action of the probate court in sustaining the demurrer to said claim.

The second question involved in the case is one of practice. The plaintiffs in error contend, that under our statutes requiring matters of this kind to be heard summarily and without pleading, there is no such practice as interposing a demurrer to a claim filed in the probate court. Paragraph 2878 of the General Statutes of 1889 reads as follows:

“The probate court shall hear and determine all demands in a summary way, without the form of pleading, and shall take the evidence of competent witnesses, or other legal evidence.”

The statute contemplates that the court shall hear the evidence in support of the claim, without any pleadings. With this provision of law in our statute book, we do not think it a proper practice to file a demurrer to a claim presented in the probate court. The statute seems to contemplate the presentation of claims in this court by the owners thereof without the aid of an attorney at law, and that the court shall investigate the claims in a summary way, without any pleadings that require the skill of au attorney at law in their preparation. Once recognize the practice of filing pleadings in this court, and the contemplated simplicity of hearings therein will be lost in the maze of technicalities. We think it is better to proceed in the manner pointed out in the statute.

It is recommended that the judgment of the district court be reversed.

By the Court: It is so ordered.

Horton, C. J., and) Valentine, J., concurring.