Johnson v. Lander

39 P.2d 911, 141 Kan. 5, 1935 Kan. LEXIS 82

• Court: Supreme Court of Kansas
• Decided: January 26, 1935
• Docket: No. 31,671
• Status: Published

Opinion

The opinion of the court was delivered by

Thiele, J.:

In the opinion reported in 140 Kan. 329, 36 P. 2d 1006, it is stated that notice of appeal in the Anna Hedin estate was filed too late, and this court is without jurisdiction to entertain the appeal, which was from an adverse ruling on a demurrer to plaintiff’s claim. A similar ruling in the Anders Hedin estate was not considered for the same reason.

A petition for rehearing has called to our attention the fact that the certificate of the clerk of the district court to the clerk of this court did not show the date notice of appeal was filed in his office, that actually it was filed within time, and that we misconstrued the certificate. An examination of the facts shows the notice of appeal was filed in time to raise the question as to the ruling on the demurrers in both cases, both demurrers being alike in form.

The substance of the grounds of both demurrers was that the probate court had no jurisdiction to hear and determine the claims made. The question of jurisdiction was fully treated in the opinion under other specifications of error in the Anders Hedin case, and need not be repeated. Under what is there said, it appears that the court’s order overruling the demurrer in each case was correct.

The opinion is modified to state that the demurrer in each case has been considered, and the ruling of the trial court found to be correct.

The order dismissing the appeal in the Anna Hedin case is revoked, and the ruling of the lower court on the demurrer is affirmed.

Other matters presented by the motion for rehearing were fully considered on the original submission of the cause and no reason appears why there should be further comment thereon.

The motion for rehearing is denied.

Burch, J., not sitting.