Norris v. Whittelsey

131 P.2d 911, 156 Kan. 157, 1942 Kan. LEXIS 31

• Court: Supreme Court of Kansas
• Decided: December 12, 1942
• Docket: No. 35,691
• Status: Published

Opinions

The opinion of the court was delivered by

Thiele, J.:

This appeal arises from proceedings in the probate court.

Harry R. Whittelsey, a resident of Shawnee county, died in April, 1940. A petition to have his will admitted to probate was filed, to which Maude G. Norris filed objections that the purported will was in violation of an agreement between the decedent and herself. On hearing the will was admitted to probate, and no appeal was taken from that order. Notice of appointment of the executors was first published on April 25,1940. Nine months later, and on January 25, 1941, Maude G. Norris filed in the probate court a petition for allowance of her demand against the estate. The details need not be set out, but the substance of the claim was that by reason of her performance of services under an agreement with the decedent, she was entitled to one-half of his estate. At the time of the filing of the petition it was not set for hearing.

On February 13, 1941, the executors filed a motion to strike and dismiss the petition for the reason that publication of their appointment having been first made on April 25, 1940, and the petition of the claimant having been filed on January 25, 1941, the same was not filed within nine months, and that it was barred as a matter of law by reason of the provisions of G. S. 1941 Supp. 59-2239. On the hearing, this motion was denied. Because of the contention later discussed, we note that no attempt was made to appeal from this ruling.

Thereafter the petition of Maude G. Norris was set for hearing, and upon the hearing held October 6,1941, the claim was disallowed. From that ruling Maude G. Norris appealed to the district court.

On March 18, 1942, the executors filed in the district court their motion to dismiss the appeal, on the grounds the claim was not exhibited within nine months from the date of the first publication of notice to creditors, and was barred by the statute of limitations and by G. S. 1941 Supp. 59-2239. The trial court filed a memorandum opinion that it was bound by the decision in In Re Estate of Dotson, 154 Kan. 562, 119 P. 2d 518, and it sustained the motion to dismiss the appeal. From that ruling Maude G. Norris appeals to this court, the specifications of error covering the matters hereafter discussed.

We notice first appellant’s contention that the motion to dismiss filed in the district court was res judicata and binding on the executors for the reason the same questions were presented and raised by their motion to dismiss filed in the probate court and decided adversely to them and from which no appeal was perfected. This contention is not good. It has been held repeatedly that an order overruling a motion to dismiss is not a final order and an appeal may not be taken therefrom. In the early case of Brown v. Kimble, 5 Kan. 80, it was said that denial of a motion to dismiss an action is not an order from which error lies to this court until final disposition of the action. Through the years that rule has been followed and applied in a variety of situations, e. g., Maynard v. Bank, 105 Kan. 259, 182 Pac. 542, where the motion was to dismiss for improper joinder; Oil Co. v. Beutner, 101 Kan. 505, 167 Pac. 1061, where the motion was to set aside service; Edwards v. City of Neodesha, 110 Kan. 492, 204 Pac. 708, where the motion was to dismiss the action as to certain parties; Anderson v. Higgins, 35 Kan. 201, 10 Pac. 570, where motion was to dismiss appeal from justice of the peace court; Montgomery Ward & Co. v. Ellis, 152 Kan. 320, 103 P. 2d 817, where the motion was to dismiss an appeal from a‘ city court; In re Estate of Johnson, 147 Kan. 12, 75 P. 2d 813, where the motion was to dismiss an appeal from probate court; and see also the many cases noted in those cited.

The other contentions of the appellant cover the questions (a) whether the filing within time of the petition for allowance of claim constituted due exhibition of the demand, (b) whether such filing constituted the commencement of a proceeding in the probate court so as to require the entry within nine months after first notice to the creditors of the appointment of the executors of an order setting the petition for hearing, and (c) whether the provisions of G. S. 1941 Supp. 59-2237 relative to fixing time and place of hearing are rendered inoperative and void by reason of the provisions of G. S. 1941 Supp. 59-2204.

Appellant recognizes that questions (a) and (6) are controlled by the holding in In re Estate of Dotson, 154 Kan. 562, 119 P. 2d 518, and on which the trial court based its decision, and in her brief expresses the belief that upon full consideration this court will not follow the Dotson case as applied to the facts at bar. The only distinction in facts to which attention is directed is that in the Dotson case the claimant, after filing its petition, waited for a longer period to have a hearing set. Appellant here says the claimant in the Dotson case was guilty of laches, but the decision was not based on that ground. It may here be mentioned that in the Dotson case the claimant filed its petition within forty days after notice was first published and nothing further occurred until about thirteen months later, when an heir moved to have the claim dismissed. In the case at bar, the claimant waited until the last day (the appellees contended until one day after) a claim could be filed, and the matter was only set after a motion io dismiss had been filed and denied. The instant case cannot be distinguished from the Dotson case for the reason asserted. The instant case presents the same situation which existed on the Dotson case, where it was held:

“Construing G. S. 1939'Supp. 59-2204, 59-2237 and 59-2239, it is held: One who has a demand against an estate of a decedent must initiate proceedings for its allowance by filing a petition and causing it to be set for hearing. The order setting the petition for hearing must be made within nine months after the first notice to creditors of the appointment of the executor or administrator.” (Syl. U 2.)

We are satisfied that case was correctly decided, and that it controls the case at bar. No purpose would be served by restating what is there said.

Not much space need be devoted to question (c) as stated above. All the provisions of the probate code must be considered together, and it may not be said that G. S. 1941 Supp. 59-2237 is inoperative or void by reason of 59-2204. Both sections were fully considered in arriving at the decision in the Dotson case.

The judgment of the district court dismissing the appeal from the probate court is affirmed.