concurrence">Jackson, J.,

(concurring): The author of the dissenting opinion seems greatly disturbed about this case and about the case of In re Estate of Shirk, 188 Kan. 513, 363 P. 2d 461. As I see the question, it comes down to this, are we to be hypnotized by the name given a paper filed in a case or are we to look into the paper to see what is contained therein. If the view expressed by the dissenting opinion is followed, a pleader might plead one of the grounds for de*192murrer and call the paper a motion to dismiss (as is done in the federal rules), and if the trial court overrules the motion, then pleader could file a second motion to strike containing the same ground of demurrer. We will assume the trial court might be a little impatient and immediately overrule the motion to strike. Of course, if the trial court should sustain the motion, tiren it “would be tantamount to a demurrer” and be appealable at once; even the dissenting opinion agrees to that position. But the trial court still thinks he is right and overrules the motion to strike. Now, suddenly our pleader discovers the contents of G. S. 1949, 60-705, in the statute book and proudly files a demurrer but still on the same well-worn ground alleged in the motion to dismiss and also in the motion to strike. We assume the district court is affable and overruled the demurrer without further orders. Now the dissenting opinion would hold that our pleader should have sixty days after the order overruling his demurrer to bring his appeal to this court. I disagree.

In my limited time for research, I have failed to find a case in which a motion to strike which has been overruled has been held to be an appealable order, although there are many cases saying that the motion can be tantamount to a demurrer. However, in Wright v. Rogers, 167 Kan. 297, 205 P. 2d 1010, the court treated as a demurrer a motion to dismiss which was overruled by the trial court and the appeal was allowed. In Collins v. Richardson, 171 Kan. 152, 230 P. 2d 1018, the late Mr. Chief Justice Harvey followed the opinion of our present Chief Justice in the Wright case as to the motion being an appealable order.

It would appear to me that the mere name of a pleading is rather immaterial. The lawyer wants to know what question is raised.

Citation profile

Relationships

How this case has been treated — in progress