Chapter 60: Procedure, Civil

Article 2: Rules Of Civil Procedure

Statute 60-212: Defenses and objections. (a) When defenses and objections presented. A defendant shall serve such defendant's answer within 20 days after the service of the summons and petition upon such defendant, except where service by publication is had the defendant shall serve such defendant's answer within the time fixed in the notice which shall not be less than 41 days from the time the notice is first published. A party served with a pleading stating a cross-claim against such party shall serve an answer thereto within 20 days after the service upon such party. The plaintiff shall serve such plaintiff's reply to a counterclaim in the answer within 20 days after service of the answer or, if a reply is ordered by the court, within 20 days after service of the order, unless the order otherwise directs. The service of a motion permitted under this section alters these periods of time as follows, unless a different time is fixed by order of the court: (1) If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court's action; (2) if the court grants a motion for a more definite statement the responsive pleading shall be served within 10 days after the service of the more definite statement.

      (b)   How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) Lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under K.S.A. 60-219 and amendments thereto. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense provided in subsection (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256 and amendments thereto, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by K.S.A. 60-256 and amendments thereto.

      (c)   Motion for judgment on the pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256 and amendments thereto, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion.

      (d)   Preliminary hearings. The defenses specifically enumerated in subsection (1) through (7) of subsection (b), whether made in a pleading or by motion, and the motion for judgment mentioned in subsection (c) shall be heard and determined before trial on application of any party, unless the judge orders that the hearing and determination thereof be deferred until the trial.

      (e)   Motion for more definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, such party may move for a more definite statement before interposing such party's responsive pleadings. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the judge is not obeyed within 10 days after notice of the order or within such time as the court may fix, the judge may strike the pleading to which the motion was directed or make such order as the judge deems just.

      (f)   Motion to strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by this article, upon motion made by a party within 20 days after the service of the pleading upon such party or upon the court's own initiative at any time, the judge may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

      (g)   Consolidation of defenses in motion. A party who makes a motion under this section may join with it any other motions herein provided for and then available to him. If a party makes a motion under this section but omits therefrom any defense or objection then available to such party which this section permits to be raised by motion, such party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subsection (h)(2) on any of the grounds there stated.

      (h)   Waiver or preservation of certain defenses. (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subsection (g) or (B) if it is neither made by motion under this section nor included in a responsive pleading or an amendment thereof permitted by subsection (a) of K.S.A. 60-215 and amendments thereto to be made as a matter of course.

      (2)   A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party under K.S.A. 60-219 and amendments thereto, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under subsection (a) of K.S.A. 60-207 and amendments thereto, or by motion for judgment on the pleadings, or at the trial on the merits.

      (3)   Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

      (i)   Answer for minor or incapacitated person. The guardian or conservator of a minor or incapacitated person, or attorney for a person in prison shall deny in the answer all the material allegations in the petition prejudicial to such defendant.

      History:   L. 1963, ch. 303, 60-212; L. 1965, ch. 354, § 1; amended by Supreme Court order dated July 17, 1969; L. 1990, ch. 202, § 24; Jan. 1, 1991.