Board of Com'rs of Marion County v. Clark

• Citation: 138 P.2d 449,157 Kan. 132
• Decision Date: 12 June 1943
• Docket Number: 35890.
• Parties: BOARD OF COM'RS OF MARION COUNTY v. CLARK et al.
• Court: United States State Supreme Court of Kansas

138 P.2d 449

157 Kan. 132

BOARD OF COM'RS OF MARION COUNTY v. CLARK et al.

No. 35890.

Supreme Court of Kansas

June 12, 1943

Syllabus by the Court.

Appellant is not compelled to specify error on every ruling, decision and judgment included in its notice of appeal, and, when standing on findings of fact made by the trial court subsequent rulings on evidence and other matters ordinarily presented in motion for a new trial become immaterial.

A specification of error that, "upon the findings of fact and the record as a whole, the judgment of the lower court is contrary to law", was sufficiently definite and not within rule that a specification of error merely stating that the trial court erred in rendering judgment does not present any specific question for review.

Upon vacation of all or part of a city street, the vacated portion reverts to owners of lots abutting thereon, in proportion to the frontage, and becomes a part of such lot which passes under a conveyance in which the lots are described as originally platted.

Where city lots as platted were 150 feet long and portions of such lots had been conveyed by deeds describing the lot numbers "less the west 50 feet", a description of lots on tax rolls as "the east 100 feet" of such lots was sufficient to cover the property conveyed and sufficient to include that portion of vacated street abutting lots on the east. Gen.St.1935, 67-239, 79-2316; Gen.St.Supp.1941 79-2316.

1. A specification of error that upon findings of fact made the judgment of the trial court is contrary to law is sufficiently definite and not within the rule that a specification of error, which merely states the trial court erred in rendering judgment, does not present any specific question for review.

2. When all or a part of a street of a city is vacated, the vacated portion reverts to the owners of the lots abutting thereon, in proportion to the frontage, and becomes an appurtenance and part of such lot which passes under a conveyance by the mere description of the lot as originally platted.

3. In all proceedings relative to assessing, advertising or selling lands for taxes, it is sufficient to describe the lands to designate the lot and block, and such a description which indicates the land intended with ordinary and reasonable certainty and which would be sufficient between grantor and grantee in an ordinary conveyance, is sufficient.

4. The record examined in an action to foreclose the county's lien for taxes, and held, that the description of the lands appearing on the assessment rolls and in the petition for foreclosure sufficiently described the lands conveyed to and owned by the defendant appellee.

Appeal from District Court, Marion County; Jay E. Hargett, Judge pro tem.

Action by the Board of County Commissioners of Marion County, Kan., against Mary E. Miller and others to foreclose the county's lien for unpaid taxes. From a judgment holding that the taxes and assessments were void as against land conveyed to defendant C. M. Clark, and from order denying plaintiff's motion for additional findings, to set aside findings, and for a new trial, plaintiff appeals.

Judgment reversed, set aside, and remanded with directions.

Roscoe King, Marion county attorney, of Marion, for appellant.

D. M. Ward, of Peabody, for appellee.

THIELE Justice.

This was an action by the Board of County Commissioners of Marion County, to foreclose the county's lien for unpaid taxes, and from a judgment in favor of the defendant C. M. Clark, the county appeals.

In a preliminary way it may be said there was no dispute about the regularity of the proceedings, nor about the amount of taxes involved. The sole question was the sufficiency of the description of the real estate on which the tax lien was claimed.

From a plat offered and received in evidence, it appears that in the city of Peabody, as originally platted, Sycamore Street North, which runs north and south, was one hundred feet wide. On the west side of Sycamore Street North and just north of Second Street, lay lot 57 and to the north, seriatim, were lots 59, 61 and 63.

The following facts are taken from the findings of the trial court:

1. Each of the above lots was platted 150 feet east and west and 25 feet north and south.

2. In 1879 the city by ordinance vacated 10 feet on each side of Sycamore Street.

3. In 1921 defendant Clark received a conveyance by warranty deed from the owner of lots 57, 59, 61 and 63 on Sycamore Street North in the City of Peabody, Marion County, Kansas, excepting the south 90 feet of the west 50 feet of said lots.

4. The county clerk, instead of entering on the transfer record the description as in the above deed, entered the description as "The East 100 feet of Lots 57, 59, 61, and all of Lot 63 excepting the West 50 feet of the south 15 feet on Sycamore Street", etc.

5. That the property was carried on the tax rolls under the description in No. 4 and the proceedings thereafter were regular insofar as that description is concerned.

6. That the property as described in the deed to Clark is one tract of land and at no time has said property been assessed as such tract.

"7. The total taxes, penalties and interest for the years 1936 to 1942 inclusive, shown on the tax roll in the County Treasurer's office against the property as described thereon is $722.54, but there is no showing on the tax rolls of any of the tax proceedings for the years 1936 to 1942 inclusive of taxes, penalties or interest on the tract of land as conveyed to C. M. Clark."

As a matter of law the trial court concluded that the taxes and assessments of 1936 to 1942 inclusive were void as against the tract of land as conveyed to Clark at finding No. 3, and that judgment should be rendered in his favor, and it was so adjudged.

The plaintiff's motions for additional findings, to set aside findings, and for a new trial were denied, and it appealed not only from the judgment in favor of Clark but from the rulings on the motions last above mentioned.

In its abstract of the record, the appellant presents only one specification of error, which reads: "Upon the findings of fact, and the record as a whole, the judgment of the lower court is contrary to law."

Appellee objects to a consideration of the appeal and contends it should be dismissed; that the effect of the specification of error is only that the judgment is contrary to law; that the overruling of the motion for a new trial is not specified as error and for that reason no claimed errors are before this court for consideration. In general support of this contention, our attention is directed to many of our decisions, some of which will be referred to later. It is first noted, however, that while the appellant did appeal not only from the judgment but also from the rulings on its motions following judgment, on presentation of its appeal it has elected to stand on one proposition--that upon the findings of fact made, the judgment is contrary to law. In this case no question of time is involved. The appeal was taken within two months from the date of the judgment. Appellant is not compelled to specify error on every ruling, decision and judgment included in its notice of appeal. If it is now willing to stand on the findings of fact made by the trial court, the subsequent rulings become immaterial. In such situation we are not concerned with whether the evidence supported the findings of fact or warranted other findings, or with rulings on evidence, and such other matters as would ordinarily have to be presented in a motion for a new trial. The sole question must be and is whether the findings of fact support the judgment rendered. Was the specification of error sufficient for that purpose? In Chicago Lumber & C. Co. v. Smith, 84 Kan. 190, 114 P. 372, it was held that a specification that the court erred in rendering the judgment which it rendered, merely says the judgment is wrong and does not specify any error. That rule was applied in later cases, among them being Brewer v. Harris, 147 Kan. 197, 75 P.2d 287; Heniff v. Clausen, 154 Kan. 717, 121 P.2d 196. It was also referred to in Lambeth v. Bogart, 155 Kan. 413, 125 P.2d 377, although the appeal there was dismissed because there was no specification of any kind. We are of the opinion the specification of error in the case at bar does not bring it within the rule of the above cases. It is no mere general complaint that the judgment is wrong or contrary to law. It is more specific and to the effect that as a matter of law the findings of fact do not support the judgment. Although the specification might have been somewhat expanded, we think it was sufficient.

Appellant's principal contention is that the description of the real estate as it appears on the tax rolls and on which it is sought to foreclose a lien for taxes covers and includes the identical land described in the deed to the defendant Clark.

The gist of appellee's answer to that contention is that when the Clark deed was presented to the county clerk, he did not enter a proper description of the real estate upon the transfer record as required by Laws 1877, Ch. 145; G.S.1935 67-239, but entered another and different...