St. Francis Land & Abstract Co. v. Rathburn

Supreme Court of Kansas

St. Francis Land & Abstract Co. v. Rathburn

114 P. 862, 84 Kan. 664, 1911 Kan. LEXIS 390

CourtSupreme Court of Kansas

DecidedApril 8, 1911

DocketNo. 16,803

StatusPublished

Cited by2 cases

This text of 114 P. 862 (St. Francis Land & Abstract Co. v. Rathburn) 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

St. Francis Land & Abstract Co. v. Rathburn, 114 P. 862, 84 Kan. 664, 1911 Kan. LEXIS 390 (kan 1911).

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Opinion

Per Curiam:

It appears from the abstract that a motion was filed to require copies of the note and mortgage to be attached to, the answer. While the abstract does not show that the motion was acted upon, the failure to attach such copies is one of the grounds of the motion to strike the amended answer from the files, and it will be assumed that this is the ground upon which the court sustained the motion. When the amended answer was stricken from the files it left the original answer standing as though no amended answer had been filed. (See 20 Encyc. PI. & Pr. 994, where there is a mistake in the text, which should read: “as though no amended answer had been filed.”) All that was left of the original answer was the general denial, a demurrer having been sustained to the other defenses, and the appellant might have offered her evidence under the general denial but preferred to stand upon her claim that the court erred in refusing permission to file another answer. It was within the discretion of the court to refuse permission to file a second amended answer. The abstract fails to disclose error in the court’s rulings. The evidence of the appellee shows that the mortgage debt had been paid.

The judgment is affirmed.

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Per Curiam:

It appears from the abstract that a motion was filed to require copies of the note and mortgage to be attached to, the answer. While the abstract does not show that the motion was acted upon, the failure to attach such copies is one of the grounds of the motion to strike the amended answer from the files, and it will be assumed that this is the ground upon which the court sustained the motion. When the amended answer was stricken from the files it left the original answer standing as though no amended answer had been filed. (See 20 Encyc. PI. & Pr. 994, where there is a mistake in the text, which should read: “as though no amended answer had been filed.”) All that was left of the original answer was the general denial, a demurrer having been sustained to the other defenses, and the appellant might have offered her evidence under the general denial but preferred to stand upon her claim that the court erred in refusing permission to file another answer. It was within the discretion of the court to refuse permission to file a second amended answer. The abstract fails to disclose error in the court’s rulings. The evidence of the appellee shows that the mortgage debt had been paid.

The judgment is affirmed.

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Bluebook (online)

114 P. 862, 84 Kan. 664, 1911 Kan. LEXIS 390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/st-francis-land-abstract-co-v-rathburn-kan-1911.

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