Quick v. Purcell, 39920
| Decision Date | 07 April 1956 |
| Docket Number | No. 39920,39920 |
| Citation | 179 Kan. 319,295 P.2d 626 |
| Parties | Virgil QUICK, Receiver, Appellee, v. Don G. PURCELL, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. On appeal the rule is that error is never presumed, and it is incumbent upon the party complaining to indicate wherein it was committed.
2. Rule No. 5 of the Supreme Court requires that the abstract of the appellant shall include a specification of the errors complained of, separately set forth and numbered.
3. A motion for a new trial or a notice of appeal does not constitute a specification of the errors complained of within the meaning and purport of Rule No. 5 of the Supreme Court.
4. Where a party's right to be heard on appeal is challenged on the grounds of noncompliance with Rule No. 5 of this court, and it appears from the record he has made no attempt to comply with it, his appeal will be dismissed.
Jean Oliver Moore, Wichita, Clark V. Owens and Wendell E. Godwin, Wichita, on the brief, for appellant.
Harry Gillig and Roy H. Wasson, Wichita, Henry D. Edwards, Wichita, on the brief, for appellee.
This is an action by a receiver seeking recovery on two statutory appeal bonds executed by the appellant, as surety, pursuant to G.S.1949, 60-1209, for loss sustained to the receivership estate during the pendency of an appeal to this court from an order appointing the receiver, which was later dismissed.
At the outset, our jurisdiction to hear this appeal is challenged. Appellee filed a motion to dismiss this appeal by reason of appellant's failure to set forth in his abstract any specifications of error whatsoever. The contention cannot be ignored. Rule No. 5 of this court (see 174 Kan. XI; G.S.1949, 60-3826, 'Rules of the supreme court' No. 5) long in force and effect, among other things, provides:
'* * * The appellant's abstract shall include a specification of the errors complained of, separately set forth and numbered. * * *'
The rule has been printed repeatedly in various volumes of the Kansas reports. Its purpose is designed to promote definiteness, fairness and orderly procedure of litigation on appellate review. It was intended to be of benefit to both the Bench and Bar alike. Specifically, its purpose is to advise both appellee and this court concerning error, or errors, which the appellant claims the trial court committed in rendering its judgment.
Manifestly, this court cannot review error which is claimed was committed, if none is specified. Error is never presumed, Quivira, Inc., v. Quivira Co., Inc., 173 Kan. 339, 245 P.2d 972; Elliott v. P. H. Albright Farm Loan Co., 129 Kan. 280, 282 P. 749, and it is the duty of the party complaining to indicate wherein it was committed. Fakes v. Osborne, 165 Kan. 176, 193 P.2d 218. All that the abstract of the instant appeal contains is a motion for a new trial and a notice that appellant appeals from the judgment rendered against him. A motion for a new...
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Andrews v. Hand
...to comply with the requirements of Rule No. 5, appellate review is precluded and his appeal will be dismissed (Quick, Receiver v. Purcell, 179 Kan. 319, 295 P.2d 626; Rice v. Hovey, 180 Kan. 38, 299 P.2d 45; Blevins v. Daugherty, 187 Kan. 257, 259, 356 P.2d 852; Lemon v. Pauls, 189 Kan. 314......
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Jeffers v. Jeffers
...answer, this asserted erroneous ruling is not specified as error, and, consequently, is not subject to appellate review (Quick v. Purcell, 179 Kan. 319, 295 P.2d 626; Nicholas v. Latham, 179 Kan. 348, 295 P.2d 631; Rice v. Hovey, 180 Kan. 38, 299 P.2d 45). Error is never presumed (Quivira, ......
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Blevins v. Daugherty, 41888
...complained of separately set forth and numbered, is fatal, and following Miller v. Rath, 173 Kan. 192, 244 P.2d 1213 and Quick v. Purcell, 179 Kan. 319, 295 P.2d 626, the appeal is dismissed.' (Syl. pp 1, For a decision disclosing the above rule has application in criminal cases see State v......
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North Am. Finance Corp. v. Circle-B, Inc.
...Dupont v. Lotus Oil Co., supra; Miller v. Rath, 173 Kan. 192, 244 P.2d 1213; Gilley v. Gilley, 176 Kan. 61, 268 P.2d 938; Quick v. Purcell, 179 Kan. 319, 295 P.2d 626. These appeals are ...