demurrer claim in Kansas

1963We feel that the allegations of the petition are sufficient to show that a controversy did exist arising over the interpretation of the will and call attention to the case of Huber v. Schmidt, 188 Kan. 36 , 360 P. 2d 854 , where on page 39, the opinion states the rule: “While a demurrer is rarely used in attacking a petition for a declaratory judgment, when a party elects to so employ a demurrer the test applied in determining the sufficiency of the pleading under attack is whether such pleading sets forth facts showing an actual controversy concerning some matter covered by the statute, G.

1963We feel that the allegations of the petition are sufficient to show that a controversy did exist arising over the interpretation of the will and call attention to the case of Huber v. Schmidt, 188 Kan. 36 , 360 P. 2d 854 , where on page 39, the opinion states the rule: “While a demurrer is rarely used in attacking a petition for a declaratory judgment, when a party elects to so employ a demurrer the test applied in determining the sufficiency of the pleading under attack is whether such pleading sets forth facts showing an actual controversy concerning some matter covered by the statute, G.

1961Under the decisions of this court it could consider only that evidence most favorable to plaintiff, as was well stated in Carlburg v. Wesley Hospital & Nurse Training School, 182 Kan. 634 , 323 P. 2d 638 , syl. ¶ 2.

1961Under the decisions of this court it could consider only that evidence most favorable to plaintiff, as was well stated in Carlburg v. Wesley Hospital & Nurse Training School, 182 Kan. 634 , 323 P. 2d 638 , syl. ¶ 2.

1951Appellee in his brief has called the attention of the court to the cases of Burns v. Drake, 157 Kan. 367 , 139 P. 2d 386 ; Erwin v. Leonard, 166 Kan. 630 , 203 P. 2d 207 ; and In re Estate of Pratt, *354 164 Kan. 512 , 190 P. 2d 872 , as supporting the proposition that the bench and bar of this state have approved the filing of demurrers in probate practice.

1951Appellee in his brief has called the attention of the court to the cases of Burns v. Drake, 157 Kan. 367 , 139 P. 2d 386 ; Erwin v. Leonard, 166 Kan. 630 , 203 P. 2d 207 ; and In re Estate of Pratt, *354 164 Kan. 512 , 190 P. 2d 872 , as supporting the proposition that the bench and bar of this state have approved the filing of demurrers in probate practice.

1951Appellee in his brief has called the attention of the court to the cases of Burns v. Drake, 157 Kan. 367 , 139 P. 2d 386 ; Erwin v. Leonard, 166 Kan. 630 , 203 P. 2d 207 ; and In re Estate of Pratt, *354 164 Kan. 512 , 190 P. 2d 872 , as supporting the proposition that the bench and bar of this state have approved the filing of demurrers in probate practice.

1951Appellee in his brief has called the attention of the court to the cases of Burns v. Drake, 157 Kan. 367 , 139 P. 2d 386 ; Erwin v. Leonard, 166 Kan. 630 , 203 P. 2d 207 ; and In re Estate of Pratt, *354 164 Kan. 512 , 190 P. 2d 872 , as supporting the proposition that the bench and bar of this state have approved the filing of demurrers in probate practice.

1951Appellee in his brief has called the attention of the court to the cases of Burns v. Drake, 157 Kan. 367 , 139 P. 2d 386 ; Erwin v. Leonard, 166 Kan. 630 , 203 P. 2d 207 ; and In re Estate of Pratt, *354 164 Kan. 512 , 190 P. 2d 872 , as supporting the proposition that the bench and bar of this state have approved the filing of demurrers in probate practice.

1951Appellee in his brief has called the attention of the court to the cases of Burns v. Drake, 157 Kan. 367 , 139 P. 2d 386 ; Erwin v. Leonard, 166 Kan. 630 , 203 P. 2d 207 ; and In re Estate of Pratt, *354 164 Kan. 512 , 190 P. 2d 872 , as supporting the proposition that the bench and bar of this state have approved the filing of demurrers in probate practice.

1938S. 1935, 22-715, as to the proceedings in probate court, which is 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: Provided, That in the case of contested claims the court may, in its discretion, order pleadings filed, the same to be governed by the code of civil procedure so far as applicable.” The appellant also cites the following language of the opinion in the case of Hayner v. Trott, 46 Kan. 70 , 26 Pac. 415 : “With this provision of law in our sta

1907(Atkin v. Coal Co., 73 Kan. 768 , 84 Pac. 1040 .) Later, upon issues joined, a trial was had, and when the plaintiff had offered its testimony the surety company filed its demurrer to the evidence, which was overruled, and no testimony being offered in behalf of the surety company verdict and judgment were given for the plaintiff.

1907(Atkin v. Coal Co., 73 Kan. 768 , 84 Pac. 1040 .) Later, upon issues joined, a trial was had, and when the plaintiff had offered its testimony the surety company filed its demurrer to the evidence, which was overruled, and no testimony being offered in behalf of the surety company verdict and judgment were given for the plaintiff.

1898The opinion cites a large number of cases, one of them being House v. Mullen, 22 Wall. 42 , in which a demurrer to a bill in chancery had set up several grounds, some reaching the merits of the action and others not.

1898The supreme court held that the judgment upon the demurrer was a bar to the last action, remarking that “ the order and judgment, presumptively at least, show that the merits of the case were in fact determined.” The court regarded the case of Griffin v. Seymour, supra, as depending upon the fact that, since the supreme court had held there was a misjoinder of parties, the ruling was presumptively upon that ground.

1891Juries, § 266, p. 284.) The trial court, in sustaining the demurrer to the challenge to the array, very pertinently said: “The court does so because no specific ground of challenge .to the array is urged that can apply to all of the members of the jury now selected, as the court takes judicial knowledge of the fact that a portion of the jury was drawn by the direct order of the court after the commencement of the present term, under an order on file for said drawing, and that another portion of the jury are talesmen selected by the sheriff upon the order of the court from among the bystanders.