
    No. 22,712.
    J. J. Klapper, Appellant, v. The J. R. Burnett Coal & Mining Company et al., Appellees.
    
    SYLLABUS BY THE COURT.
    1. Compensation Act — Pleadings Show Plaintiff Not Entitled to Recover. Maughlelle v. Mining Co., 99 Kan. 412, 161 Pac. 907, followed.
    2. S-ame — Motion for Judgment on Pleadings — Notice—Waiver. After the issues have been made up in an action, and the pleadings disclose that judgment cannot be rendered for the plaintiff on the facts alleged, a motion for judgment on the pleadings may be filed out of term time without notice to the opposing party and without his consent; and judgment may be rendered thereon, when counsel for the opposing party is present at and participates in the hearing of the motion without objection.
    Appeal from Cherokee district court; Frank W. Boss, judge.-.
    Opinion filed December 11, 1920.
    Affirmed.
    
      E. L. Burton of Parsons, C. A. McNeill, of Columbus, F. B. Wheeler, and Thomas W. Clark, both of Pittsburg, for the appellant.
    
      A. H. Skidmore, C. B. Skidmore, and A. A. Skidmore, all of Columbus, for the appellees.
   The opinion of the court was delivered by

Marshall, J.:

The plaintiff commenced this action under the workmen’s compensation act to recover for injuries sustained by him while working in a coal mine for defendants, James H. Price and Sons. Judgment was rendered in favor of the J. R. Burnett Coal and Mining Company on a motion for judgment on the pleadings. The plaintiff appeals.

The pleadings disclose that this action is on all fours with Maughlelle v. Mining Co., 99 Kan. 412, 161 Pac. 907, where a summary of the contract between the J. R. Burnett Coal and Mining Company and James H. Price and Sons is set out. That summary reveals that the terms of the contract involved in that action were the same as those of the contract involved in the present action. An examination of the abstract in Maughlelle v. Mining Company discloses that the contract there involved is the contract involved in the present case. Under these circumstances the decision in Maughlelle v. Mining Company is conclusive.

The plaintiff urges that the motion for judgment on the pleadings was filed out of term time and without notice or consent. Such a motion could not be properly filed until after the issues had been made up; then if they disclosed that judgment could not be rendered for the plaintiff against the J. R. Burnett Coal and Mining Company, it was proper for the company to file a motion for judgment on the pleadings. It probably would have been improper to present the motion without first giving notice to the opposing party, unless he was present, but the plaintiff appeared by his counsel and participated in the hearing, and the abstract does not disclose that he objected to that hearing for any reason. If notice was necessary, it was waived by the appearance of counsel. The citation of authorities is unnecessary.

The judgment is affirmed.  