Simmon was given custody of the minor children. The Simmons had six children, four of whom were minors when the divorce was granted. Her daughter, Mary Elizabeth Simmon, was married to Simmon for fifteen years.
#Sim mon app trial
This is an appeal by Billie Dennis Simmon from an order entering judgment in favor of Dora Bond in what amounts to two separate quiet title actions that were consolidated for trial by the trial court.ĭora Bond is the former mother-in-law of Simmon. 60-255( a) had not been given and (3) the trial court abused its discretion in refusing to allow the defendant to file his answer out of time. In an action to quiet title, the record is examined and it is held that (1) the trial court erred in granting judgment on the pleadings prior to the defendant's answering (2) the trial court could not grant default judgment, because the requisite three-day notice required by K.S.A. SAME - Judgment on the Pleadings - Default Judgment - Notice Requirements - Filing of Answer Out of Time - Abuse of Judicial Discretion. Failure to file an answer is prima facie a default.Ĥ. SAME - Pleadings - Failure to File Answer - Default. Pleadings are closed when an answer is filed, unless a counterclaim, cross-claim or a third-party claim is filed, in which event the filing of a reply or answer to the cross-claim or third-party claim will normally mark the close of the pleadings.ģ.
A motion for judgment on the pleadings will not lie until the pleadings are closed.Ģ. CIVIL PROCEDURE - Judgment on the Pleadings. Bond was not entitled to default judgment due to her failure to give Simmon notice. 60-255( a), stating the general rule that the law favors a trial upon the merits and looks with disfavor upon default judgments. 38, 409 P.2d 1019 (1966), the Supreme Court set aside a default judgment because the prevailing party failed to give the adverse party who had entered an appearance the 3-day notice as required by K.S.A. A motion for judgment on the pleadings or for default normally contemplates that the motion will be presented for determination as a pretrial step. An oral motion cannot be made in the course of a hearing or trial to seek a determination on any matter other than that for which the hearing was noticed to be heard.
As we understand the exception, it is intended to apply to appropriate oral motions which are incidental to the matter being heard. 60-207( b)(1), which requires motions to be in writing. The trial judge was of the opinion that written notice was not necessary in this case because the oral motion was made during a trial, thus falling within the exception to K.S.A.Failure to file an answer is prima facie a default. Pleadings are closed when an answer is filed, unless a counterclaim, cross-claim or a third-party claim is filed, in which event the filing of a reply or answer to the cross-claim or third-party claim will normally mark the close of the pleadings.
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