Acme Foundry & Mach. Co. v. Brennan, 41007

• Decision Date: 08 November 1958
• Docket Number: No. 41007,41007
• Parties: The ACME FOUNDRY & MACHINE CO., a Corporation, Appellee, v. Paul G. BRENNAN, Appellant.
• Court: Kansas Supreme Court

Page 282

331 P.2d 282

183 Kan. 541

The ACME FOUNDRY & MACHINE CO., a Corporation, Appellee, v. Paul G. BRENNAN, Appellant.

No. 41007.

Supreme Court of Kansas.

Nov. 8, 1958.

Syllabus by the Court.

Following Myers v. Kansas Stone Products Co., 174 Kan. 111, 254 P.2d 270, a motion for a new trial filed out of time is a nullity and is of no avail to a defeated litigant. The failure of appellant to file his motion for new trial within the time prescribed by statute (G.S.1949, 60-3003) warranted the district court overruling such belated motion, and an appeal from that order presents nothing for appellate review.

Otto J. Koerner, Wichita, argued the cause, and Lee R. Meador and Thomas A. Bush, Wichita, were with him on the briefs for appellant.

Morris D. Hildreth, Coffeyville, argued the cause, and Eugene G. Coombs, George D. McDarthy and George E. Peabody, Wichita, and Richard L. Becker, Coffeyville, were with him on the briefs for appellee.

FATZER, Justice.

This was an action to recover on an account for goods sold and delivered under contract for use in an oil and gas lease drilling operation in Oklahoma.

At the outset, we are confronted with appellee's motion to dismiss this appeal. The journal entry of judgment, which was approved by counsel for appellant, recites that, among other things, the action was tried to the district court on May 29, 1957, and taken under advisement until July 19, 1957, when judgment was rendered in favor of appellee. On July 26, 1957, more than three days after judgment was rendered, appellant filed a motion for a new trial, which was overruled on September 11, 1957. On November 7, 1957, more than two months after judgment was rendered, but less than two months after the motion for a new trial was overruled, the appellant perfected this appeal, and assigned six specifications of error.

The appellee asserts that, both in its motion to dismiss the appeal and in its brief on the merits, all of the specifications of error assigned by appellant are trial errors and that since the motion for a new trial was not filed until July 26, 1957, more than three days after judgment was rendered on July 19, 1957, it was a nullity and nothing is presented for appellate review, and cites and relies upon Myers v. Kansas Stone Products Co., 174 Kan. 111, 254 P.2d 270, and cases cited therein; also its companion case, Smith v. Kansas Stone Products Co., 174 Kan. 108, 254 P.2d 272.

There is merit in the appellee's contention. Without setting out appellant's specifications of error in their entirety, suffice it to say we have carefully examined each of them and conclude they are all trial errors for which redress could be obtained only by filing a timely motion for a new trial pursuant to G.S.1949, 60-3003. Consequently, the motion having been filed out of time, the appeal from the order overruling it presents nothing for appellate review. In Myers v. Kansas Stone Products Co., 174 Kan. 111, 254 P.2d 270, this court said:

'This court has long adhered to the rule that in the absence of a motion for a new trial mere trial errors are not open to appellate review. See Billups v. American Surety Co., 173 Kan. 646, 251 P.2d 237; Smith v. Kansas Transport Co., 172 Kan. 26, 238 P.2d 553; Rasmussen v. Tretbar, 170 Kan. 184, 224 P.2d 1010; Erskine v. Dykes, 158 Kan. 788, 150 P.2d 322, and numerous other authorities cited in West's Kansas Digest,...