Boyce v. Boyce, 45803
Decision Date | 07 November 1970 |
Docket Number | No. 45803,45803 |
Citation | 476 P.2d 625,206 Kan. 53 |
Parties | Betty BOYCE, Appellant, v. Ernest M. BOYCE, Defendant, The Denison State Bank, Holton, Kansas, garnishee, Appellee. |
Court | Kansas Supreme Court |
Syllabus by the Court
1. Excusable neglect as used in K.S.A. 60-206(b) is not susceptible of clear definition.
2. When a party in default seeks an enlargement of time based upon excusable neglect under K.S.A. 60-206(b), his request should be supported by evidence of his good faith, he should establish a reasonable excuse for his failure and he should show that the interests of justice can be served by granting the enlargement.
3. The provisions for enlargement of time in K.S.A. 60-206(b) apply to the period of time for filing garnishee's answer as set in K.S.A.1968 Supp. (now 1969 Supp.) 60-718.
4. The record is examined in a garnishment proceeding and it is held the trial court properly determined, (1) that the circumstances under which the neglect to file garnishee's answer occurred constituted excusable neglect under K.S.A. 60-206(b), (2) that the garnishee should be permitted to file answer out of time and (3) that plaintiff was not entitled to judgment against the garnishee by default.
F. G. Manzanares, Topeka, argued the cause and was on the brief for appellant.
Marlin A. White, Holton, argued the cause and was on the brief for appellee.
The plaintiff Betty Boyce appeals from an order and judgment of the district court in favor of the garnishee-bank.
The facts underlying the order and judgment follow.
In 1960 plaintiff obtained a divorce from the defendant, Ernest M. Boyce. The defendant was ordered to make weekly payments for the support of minor children. During the eight years which followed the defendant failed to make many of these payments and they became judgments against him. As an aid to the enforcement of these judgments an order of garnishment was directed to The Denison State Bank of Holton, Kansas, and served on February 20, 1969. The order required the bank as garnishee to answer within twenty (20) days setting forth the extent of its indebtedness to the defendant. The garnishee-bank failed to answer within the time limited. The plaintiff then filed a motion for judgment in the amount of $$17,575.07 against the bank. This was the sum alleged to be due plaintiff from the defendant Boyce. Notice of this motion was served on David Coleman, president of the bank, on March 21, 1969. This same day the bank responded by filing a motion for permission to answer out of time. In its motion the bank alleged certain facts to excuse its neglect to answer.
A hearing was held on both the motion for judgment and the motion for permission to file answer. Evidence was introduced by both parties and the court below concluded the failure of the garnishee to answer was the result of excusable neglect as that term is used in K.S.A. 60-206(b). An answer was filed by the bank with permission of the court.
The court found that the account of defendant Boyce was overdrawn by $8.80 when the garnishment order was served. The bank had no funds or property belonging to the defendant. The court concluded that plaintiff was not entitled to judgment against the garnishee-bank.
This appeal followed.
The trial court in written findings set forth the facts surrounding the bank's failure to answer within the prescribed statutory time. The pertinent findings and conclusion are:
The plaintiff does not question the sufficiency of the evidence to support the findings numbered 2, 3, 4 and 5. She does earnestly question the sufficiency of those findings to support the necessary conclusion in number 6.
K.S.A. 60-206(b) provides:
The statutes above, in which time for taking action may not be enlarged, refer to periods of time for doing certain acts after a jury has been discharged, after findings of fact have been made or after entry of a judgment. None refer to an enlargement of time to answer a garnishment order.
In the case before us the twenty (20) day period to answer had expired. Therefore under the enlargement statute the facts shown must be sufficient to support the trial court's conclusion of excusable neglect if we are to uphold the order granting permission to file the garnishee's answer.
We find no Kansas cases which discuss the term 'excusable neglect' as used in this statute. Cases from other jurisdictions are cited by plaintiff. Those cases deal with differing factual situations none of which are persuasive here. The definition of the term 'excusable neglect' contained in those cases is not particularly helpful. Defining excusable neglect in the terms of a reasonably prudent man raises the additional question of further evaluating the actions of a reasonably prudent man.
The obvious purpose of the enlargement of time statute is to allow a trial court some discretion in order to prevent a miscarriage of justice which might occur if blind adherence to set time periods were otherwise required. (See Fowks, Harvey & Thomas, Vernon's Kansas Statutes Annotated § 206.3; Anderson v....
To continue reading
Request your trial-
American Restaurant Operations, Application of
...result of excusable neglect. In analyzing whether RSC's acts constituted excusable neglect, the Court of Appeals cited Boyce v. Boyce, 206 Kan. 53, 55, 476 P.2d 625 (1970), which " 'What constitutes excusable neglect under the statute must be determined by the trial court on a case by case ......
-
State v. Sheppard
...The burden to show excusable neglect is on the party seeking an extension of the time limitation. See Boyce v. Boyce , 206 Kan. 53, 56, 476 P.2d 625 (1970). Although Kansas allows the use of "excusable neglect" in several different statutes, cases, and administrative regulations, no Kansas ......
-
Columbia Sav. Ass'n, F.A. v. McPheeters, 73041
...to prevent a miscarriage of justice which might occur if blind adherence to set time periods were otherwise required." Boyce v. Boyce, 206 Kan. 53, 55, 476 P.2d 625 (1970). The Boyce court further "What constitutes excusable neglect under the statute must be determined by the trial court on......
-
Reliance Ins. Companies v. Thompson-Hayward Chemical Co., THOMPSON-HAYWARD
...we are of the opinion the district court abused its discretion in entering default judgment against Thompson-Hayward. In Boyce v. Boyce, 206 Kan. 53, 476 P.2d 625, the term 'excusable neglect' as used in the enlargement statute relating to garnishment proceedings was considered. We held tha......