Bisagno v. Lane

• Decision Date: 12 November 1949
• Docket Number: No. 37721,37721
• Parties: BISAGNO v. LANE et al.
• Court: Kansas Supreme Court

Page 85

211 P.2d 85

168 Kan. 153

BISAGNO v. LANE et al.

No. 37721.

Supreme Court of Kansas.

Nov. 12, 1949.

Syllabus by the Court

1. Unless all parties can agree by stipulation that a transcript of certain portions of the record is not necessary, the burden is upon the appellant to obtain a transcript containing sufficient evidence to establish his position beyond any question. Without such an official transcript, the Supreme Court cannot review questions which depend on evidence.

2. Appellant's complaint of erroneous instructions by the trial court will not be reviewed where the record shows that the trial court submitted its proposed instructions in writing to counsel for appellant, and counsel made no objections thereto and suggested no modification thereof; and where complaint as to the instructions is not called to the attention of the trial court on the motion for new trial nor made a ground for motion for new trial.

3. The bald statement that 'The court erred in the judgment made and entered' is not a specification of error. It has no specific reference to any error and it presents no real question for review.

4. Appellant's charge that the judgment was procured by fraud of the appellee, where there was no finding of fraud by the trial court, and no appeal from the judgment rendered, and where the motion for new trial did not include the sixth ground stated in G.S.1935, 60-3001, cannot be sustained.

5. Jurors' affidavits attempting to explain the verdict and stating that the jury was confused by reason of the large amount of evidence and exhibits offered at the trial, are improper for purposes of impeaching the jury verdict.

6. The granting or refusal of permission to file an amended petition to conform to proof is a matter over which the trial court has wide discretion and the Supreme Court cannot review the trial court's refusal of such permission where there is no transcript or record of the plaintiff's evidence with which the amended petition was intended to conform.

7. A plaintiff, surprised by the defendant's evidence and finding himself unprepared to meet it, will usually be granted time upon making proper request; or as a last resort, he may dismiss his action without prejudice with the right to refile within a year (G.S.1935, 60-3105, 60-311). However, he cannot sit idly by and be assured of a new trial merely because he was surprised at the evidence adduced by defendant.

8. The Supreme Court cannot review the propriety of granting plaintiff a new trial on the ground of newly discovered evidence where there is no transcript or record of plaintiff's evidence, for it would thus be impossible to determine whether the purported evidence was actually 'new' and 'material', or whether it was merely 'cumulative' or 'repetitive'.

E. E. Lamb, of Yates Center, argued the cause, and Clyde Hill, also of Yates Center, was with him on the briefs for the appellant.

Stanley E. Toland, of Iola, argued the cause and was on the briefs for the appellee Ruth B. Lane.

ARN, Justice.

Plaintiff below brought this action to recover from the defendants for the drilling of oil wells pursuant to oral contracts, and for lease rentals, labor and equipment, and operation of producing oil wells. The petition contains six causes of action, the first five of which ask payment for the drilling of oil wells and certain expenses in addition thereto. The sixth cause of action seeks recovery for half of the lease rentals allegedly paid by plaintiff on acreage jointly owned by plaintiff and defendants. The prayer was for a money judgment with equitable liens upon defendant Lane's respective interest, and for an order restraining said defendant from encumbering or disposing of her interests.

The defendant, Ruth B. Lane, filed an answer separately directed at each of plaintiff's causes of action and a cross petition in two causes of action. Defendant's answer admits plaintiff drilled many of the wells in question, denied many of plaintiff's allegations, and claimed she was not indebted to plaintiff in any amount. The cross petition interpleaded Alf M. Landon as a necessary defendant, and he was made a party to this action. The cross petition sought a money judgment against plaintiff, and also prayed that the respective interests of plaintiff, defendant and Landon be determined in and to the properties jointly owned by them and that such properties be sold and the proceeds distributed. Plaintiff's reply and answer to defendant's cross petition was a general denial. The trial court sustained a demurrer as to the defendant Julia Cotton, and Landon made no appearance in the court below and is not involved in this appeal.

The journal entry indicates that the trial, which was by jury, consumed four full days. The record before us refers to plaintiff's exhibits numbered as high as 76. The jury verdict was for defendant and assessed her recovery at $750. Plaintiff's motion for new trial was overruled and he appealed. The transcript of the evidence obtained by appellant omits all of plaintiff's evidence offered in his case in chief. It appears also that oral testimony was taken in support of the motion for a new trial, and no transcript was obtained of those proceedings.

The alleged errors on the part of the trial court are specified by appellant as follows:

1. The court erred in admitting on behalf of appellee incompetent, irrelevant, immaterial and prejudicial evidence over the objection of the appellant.

2. The court erred in instructions given to the jury.

3. The court erred in the judgment made and entered in this case.

4. That the judgment entered in said case was procured by fraud on the part of appellee.

5. For misconduct on the part of the jury.

6. That the verdict of the jury and judgment of the court are not supported by the evidence in said trial.

7. The court erred in overruling appellant's motion for new trial.

Before discussing these alleged errors it should be noted that nothing before us indicates there was a stipulation by the parties hereto or their counsel to the effect that any part of the evidence would be unnecessary for a proper examination and consideration of this appeal. In fact, appellee contends and her counsel argues before this court that a transcript of all the evidence is vital to a determination of this controversy. That being so, we are compelled to follow the general principle announced in Barker v. Chicago R. I. & P. R. Co., 158 Kan. 549, 148 P.2d 493, as follows: 'Where parties seek appellate review of questions depending solely on the sufficiency of the evidence it is incumbent upon them, in the absence of a stipulation or agreement doing away with its necessity, to procure an official transcript of all the evidence, and when they fail to furnish such transcript, or procure one containing only portions of the testimony, which is challenged as inadequate for an effective review, the evidence will not be reviewed and their appeal will be dismissed.' (Syl.) See also McGuire v Davis, 95 Kan. 486, 491, 148 P. 755; Everett v. Everett, 110 Kan. 442, 204 P. 723; Buchwalter v. Henrion, 111 Kan. 781, 208 P. 645; Darst v. Swazee, 135 Kan. 458, 11 P.2d 977; Sproul v. Russell, 135 Kan. 620, 11 P.2d 978; Farmers State Bank v. Crawford, 140 Kan. 295, 37 P.2d 14; Mercer v. Kirkwood, 147 Kan. 637, 77 P.2d 929; Green v. Frank, 148 Kan. 194, 80 P.2d 1082; Deerhead Township v. Fritz, 152 Kan. 110, 112, 102 P.2d 1035; Schreiner v. Rothgarn, 154 Kan. 20, 114 P.2d 834; Kininmonth v. Carson, 156 Kan. 808, 137 P.2d 173. In Robinson v. Davis, 162 Kan. 44, 46, 174 P.2d 111, it was held that a transcript of all the evidence adduced at the hearing on a motion for a new trial is necessary in order to show that all trial errors and irregularities were first presented to the trial court before being considered by this court on appeal. Appellant urges a dismissal of this appeal for the reason that no complete transcript of the evidence has been provided, certified and filed with the clerk of the district court as required by G.S.1935, 60-3311. Since there may be some questions raised by appellant which can be considered upon the record before us, the appeal will not be dismissed as was done in Barker v. Chicago R. I. & P. R. Co., supra, but we will indulge in a discussion of the appellant's specifications of error quoted above.

The first and sixth specifications so obviously raise issues for which a full and complete transcript of the evidence is necessary for a proper review by this court that those matters cannot be considered without such a transcript....