59-2408. Appeal from a district magistrate judge; trial on appeal; pleadings; issues; evidence. Except as provided for in K.S.A. 59-2401a, and amendments thereto, whenever an appeal has been taken from an order, judgment, decree or decision of a district magistrate judge, the district judge to which the appeal is assigned by the chief judge, without unnecessary delay, shall proceed to hear and determine all issues in the matter de novo and shall allow and may require pleadings to be filed or amended. The right to file new pleadings shall not be abridged or restricted by the pleadings filed, or by failure to file pleadings, in the proceedings before the district magistrate judge; nor shall the trial or the issues to be considered by the district judge be abridged or restricted by any failure to appear or by the evidence introduced, or the absence or insufficiency thereof, in the proceedings before the district magistrate judge.
History: L. 1939, ch. 180, § 276; L. 1945, ch. 237, § 5; L. 1965, ch. 346, § 49; L. 1976, ch. 242, § 63; L. 1977, ch. 112, § 23; L. 1978, ch. 222, § 2; L. 1986, ch. 115, § 89; L. 1999, ch. 57, § 52; L. 2006, ch. 56, § 4; July 1.
Source or prior law:
22-1107, 39-234.
Law Review and Bar Journal References:
Comment on probate jurisdiction, 1 K.L.R. 329, 333 (1953).
Nisi prius decision on jurisdiction of district court in an appeal from probate court, 4 K.L.R. 604, 605 (1956).
Survey of Kansas family law, Harvey S. Berenson, 17 K.L.R. 349, 351 (1969).
"Does Kansas Need the Uniform Probate Code?" Verne M. Laing, 42 J.B.A.K. 139, 142 (1973).
"Survey of Kansas Law: Wills, Trusts, and Probate," Richard C. Harris, 27 K.L.R. 365 (1979).
"Contested Estate Matters After Court Unification," Calvin J. Karlin, 48 J.B.A.K. 97, 102, 105 (1979).
CASE ANNOTATIONS
1. Cited; appeal under prior statutes from judgment allowing monetary claim. In re Estate of Hutchinson, 151 Kan. 333, 339, 99 P.2d 992.
2. Jurisdiction of district court on appeal discussed and determined. Erwin v. Erwin, 153 Kan. 703, 708, 113 P.2d 349.
3. District court may permit pleadings or amendments to pleadings to be filed. Meech v. Grigsby, 153 Kan. 784, 789, 113 P.2d 1091.
4. Creditor's claim not complying with K.S.A. 59-2202 held sufficient to toll nonclaim statute; amendment. Roberts v. Setty, 154 Kan. 505, 119 P.2d 539.
5. Discussed in determining probate court's equitable jurisdiction; exclusive jurisdiction. Foss v. Wiles, 155 Kan. 262, 270, 124 P.2d 438.
6. Validity of contract consenting to will should be appealed to district court for determination. In re Estate of Hoover, 155 Kan. 647, 649, 652, 127 P.2d 460. Affirmed: 156 Kan. 31, 33, 37, 38, 131 P.2d 917.
7. Cited; action to impose constructive trust held will contest; jurisdiction. Yeager v. Yeager, 155 Kan. 734, 736, 129 P.2d 242.
8. Claim for specific performance of contract to devise realty; jury trial discretionary. In re Estate of Henry, 156 Kan. 788, 803, 137 P.2d 222.
9. District court's general jurisdiction and power on appeal discussed. Egnatic v. Wollard, 156 Kan. 843, 849, 855, 137 P.2d 188.
10. Scope of appeal from final settlement order determined. In re Estate of Eyth, 157 Kan. 268, 273, 139 P.2d 378.
11. Discussed in holding K.S.A. 59-2239 applicable to demand for specific performance. Burns v. Drake, 157 Kan. 367, 371, 139 P.2d 386.
12. Proceedings, pleadings or objections in probate court prerequisite to appeal discussed. In re Estate of Grindrod, 158 Kan. 345, 349, 351, 357, 362, 148 P.2d 278 (But see, K.S.A. 59-2404 as amended).
13. Cited; order admitting will to probate not prima facie evidence of validity. In re Estate of Wallace, 158 Kan. 633, 637, 149 P.2d 595.
14. Discussed; jurisdiction of district court on appeal; pleadings. In re Estate of Pallister, 159 Kan. 7, 11, 29, 152 P.2d 61.
15. Cited; district court's duty to appoint guardian ad litem for minor discussed (dissenting opinion). In re Estate of Douglas, 160 Kan. 162, 166, 160 P.2d 661.
16. Cited; appealable action; supreme court's original jurisdiction cannot be substituted. Mahoney v. Stavely, 160 Kan. 792, 796, 165 P.2d 230.
17. Discussed in determining jurisdiction of court to vacate order under K.S.A. 59-2213. In re Estate of Lillibridge, 161 Kan. 93, 104, 166 P.2d 720.
18. Appeal action to probate will; no jury trial as of right. In re Estate of Crump, 161 Kan. 154, 156, 166 P.2d 684.
19. Probate court's annulment order void; district court lacks jurisdiction on appeal. In re Estate of Crump, 161 Kan. 154, 161, 162, 166 P.2d 684; In re Estate of Dix, 161 Kan. 364, 370, 168 P.2d 537.
20. Appeal; administration proceedings; jurisdiction of district court. In re Estate of Paronto, 163 Kan. 85, 95, 96, 180 P.2d 302.
21. Cited in criticizing form of district court's final judgment. In re Estate of Moore, 163 Kan. 147, 153, 181 P.2d 299.
22. Right to file defenses in district court mentioned. In re Estate of Gereke, 165 Kan. 249, 256, 195 P.2d 323.
23. Review of appointment of administrator by district court; K.S.A. 59-705 construed; no error. In re Estate of West, 165 Kan. 483, 484, 195 P.2d 616.
24. District court's jurisdiction on appeal discussed and determined; title to real estate. Wetzel v. Wetzel, 167 Kan. 6, 12, 204 P.2d 768.
25. No right to jury trial on appeal from order denying restoration to capacity. Holder v. Jochems, 167 Kan. 83, 84, 85, 86, 204 P.2d 777.
26. District court determining administration required may direct probate court to appoint administrator. In re Estate of Brasfield, 168 Kan. 376, 384, 214 P.2d 305.
27. Marriage contract not demand under nonclaim statute (K.S.A. 59-2239); no jury required. In re Estate of Welch, 170 Kan. 107, 112, 113, 223 P.2d 978.
28. Applied; pleadings in conformance with K.S.A. 59-2210; not belatedly filed. In re Estate of Mead, 170 Kan. 435, 437, 226 P.2d 831.
29. Petition to establish claim may be amended in district court, when. Pacific Intermountain Express Co. v. Lasswell, 171 Kan. 108, 110, 111, 229 P.2d 771.
30. Civil code governs in district court; new trial motion necessary for review of trial errors. In re Estate of Michaux, 171 Kan. 417, 421, 233 P.2d 510.
31. Final settlement order appealable even though no objection made in probate court. In re Estate of Hawk, 171 Kan. 478, 483, 233 P.2d 1061.
32. Declaratory judgment by probate court; appeal to district court. Hoard v. The Home State Bank, 176 Kan. 624, 629, 272 P.2d 1054.
33. Amended pleadings may be filed on appeal from probate to district court. In re Estate of Bennett, 178 Kan. 590, 593, 290 P.2d 837.
34. Allowance of pleadings does not result in appeal becoming new action; appeal determined regardless of appellee's participation therein. In re Estate of Osborn, 179 Kan. 365, 370, 295 P.2d 615.
35. Right to file amended petition considered. In re Estate of Forster, 179 Kan. 547, 549, 297 P.2d 174.
36. Cited; striking of motion for judgment on pleadings upheld. In re Estate of Weidman, 181 Kan. 718, 724, 314 P.2d 327.
37. Code provides only for "written defenses" motions and demurrers improper; section applies equally to matters transferred or certified to district court. In re Estate of Sims, 182 Kan. 374, 380, 381, 321 P.2d 185.
38. Construction of will; district court may allow attorney fees; jurisdiction. In re Estate of Walton, 183 Kan. 238, 243, 326 P.2d 264.
39. Petition asserting rights as heirs not a claim; amendment properly denied; claim barred. In re Estate of Lytle, 184 Kan. 304, 308, 336 P.2d 803.
40. Petitions for specific performance of contract to make will properly transferred to district court. In re Estate of Teeter, 184 Kan. 567, 568, 570, 337 P.2d 691.
41. Relief prayer defective; petition still may be amended as authorized herein. In re Estate of Manweiler, 185 Kan. 343, 348, 342 P.2d 730.
42. Probate proceeding; what pleadings proper in probate court and district court determined. In re Estate of Shirk, 186 Kan. 311, 314, 315, 350 P.2d 1.
43. District court may require pleadings to be filed or amended upon appeal from probate court. In re Estate of Brown, 189 Kan. 193, 200, 368 P.2d 27.
44. Discussed; district court action to establish alleged equitable mortgage on personalty constituted demand; probate court jurisdiction. Shields v. Fink, Executrix, 190 Kan. 17, 23, 372 P.2d 252.
45. Automobile collision; claim against estate properly transferred to district court; counterclaim for wrongful death within district court's jurisdiction; purpose and history of section stated; jurisdiction of district court where claim transferred stated and applied. In re Estate of Meyer, 191 Kan. 408, 411, 412, 413, 381 P.2d 546.
46. Probate court appeal to district court; district court has same jurisdiction as though controversy initiated there. In re Estate of Roberts, 192 Kan. 91, 102, 386 P.2d 301.
47. Mentioned; amended petition for allowance filed after nine months unverified; second amendment permitted. In re Estate of Wilkison, 192 Kan. 285, 286, 387 P.2d 152.
48. Cited; appeal of adoption proceedings. In re Marsolf, 200 Kan. 128, 131, 434 P.2d 1010.
49. Mentioned in upholding order staying wrongful death proceeding pending action of federal court. Henry, Administrator v. Stewart, 203 Kan. 289, 291, 454 P.2d 7.
50. Issues involving attorney fees determined in In re Estate of Roberts, 192 Kan. 91, held res judicata. Coffey, Administrator v. Gilbert, 204 Kan. 305, 307, 461, P.2d 747.
51. District court appeal not abridged by failure to appear or evidence introduced in probate court. In re Estate of Barnes, 212 Kan. 502, 511, 516, 512 P.2d 387.
52. Applied in determining order refusing to appoint executor; matter incidental to admission and does not require additional appeal. In re Estate of Teichgraeber, 217 Kan. 373, 380, 537 P.2d 174.
53. Trial court did not err in excluding extrinsic evidence of intent to establish spendthrift trust. In re Estate of Sowers, 1 Kan. App. 2d 675, 679, 574 P.2d 224.
54. Petition in will contest did not constitute an appeal. In re Estate of Corson, 226 Kan. 673, 675, 602 P.2d 1320.
55. Where case appealed on printed record only, district court has duty to reexamine record and make own findings and conclusions. In re Estate of Moe, 11 Kan. App. 2d 244, 246, 719 P.2d 7 (1986).
56. Cited; effect of statute of limitations (K.S.A. 60-512) on continuous service employment agreement examined. In re Estate of Moe, 240 Kan. 242, 243, 729 P.2d 447 (1986).
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