Bradley & Vrooman Company v. Summer
| Decision Date | 11 March 1922 |
| Docket Number | 22,320 |
| Citation | 205 P. 609,110 Kan. 662 |
| Court | Kansas Supreme Court |
| Parties | BRADLEY & VROOMAN COMPANY, Appellant, v. W. A. SUMMER, Appellee |
Decided January, 1922
Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.
SYLLABUS BY THE COURT.
1. ONLY COSTS INVOLVED--No Appeal. No appeal lies from a decision where the only matter involved is the costs adjudged against the appellant.
2. SAME--Duty of Trial Court to Raise Question of Jurisdiction. Although the appellee does not raise the question of jurisdiction, it is the duty of the court, where the record discloses the lack of jurisdiction, to raise the question itself and dismiss the appeal.
Claud J. Bryant, of Independence, and Emil H. Koehl, of Caney, for the appellant.
Hal R Clark, of Independence, for the appellee.
The only question raised by this appeal is the validity of an award of costs in favor of defendant when the court had given judgment in favor of plaintiff upon a part of its claim.
Plaintiff sued the defendant for $ 427.41, alleged to be due upon an account for paint sold by it to the defendant. The defense was that the paints were represented to be of a certain quality and that an agreement had been made that if they were not up to that standard the defendant had the right to return the same. Defendant claimed that when the paints were received and a part of the same had been disposed of, complaints of quality came in from customers, and upon investigation he found the paints were inferior in quality and not up to the agreed standard. He then returned that part of the goods which had not been sold and also sent plaintiff a check for $ 144.81, which he said was the balance due for the goods which had been sold. Plaintiff refused to accept the tender made and brought suit for the amount for which the goods were sold. When the defendant answered setting up his defenses, he renewed his tender of $ 144.81, and alleged that he was ready to pay the same to the clerk upon the order of the court. On a trial before a jury they found the amount due to plaintiff to be $ 144.81, and thereupon the court awarded the plaintiff that amount, but adjudged that the defendant recover the costs of the action taxed at $ 106.71.
The contention of the plaintiff, which appeals, is that the tender as made was insufficient in that it did not include an offer to pay the accrued costs and that the verdict...
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...P.2d 398; that it is the duty of this court, when the record discloses lack of jurisdiction, to dismiss the appeal, Bradley & Vrooman Co. v. Summer, 110 Kan. 662, 205 P. 609; Shively v. Burr, 157 Kan. 336, 139 P.2d 401; Palmer v. Helmer, supra; Byars v. Dix, 164 Kan. 303, 188 P.2d 662; Kowi......
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Sherk's Estate, In re
...jurisdiction to hear an appeal and may dismiss the appeal although though the parties have not raised the issue. Bradley & Vrooman Co. v. Summer, 110 Kan. 662, 205 P. 609; Shively v. Burr, 157 Kan. 336, 139 P.2d 401; In re Gambrell, 161 Kan. 4, 165 P.2d 760; Asendorf v. Asendorf, 162 Kan. 3......
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Curtis v. Kansas Bostwick Irr. Dist. No. 2
...and determine its jurisdiction to hear an appeal and may dismiss the appeal although the parties have not done so. Bradley & Vrooman Co. v. Summer, 110 Kan. 662, 205 P. 609; Shively v. Burr, 157 Kan. 336, 139 P.2d 401; In re Gambrell, 161 Kan. 4, 165 P.2d 760; Asendorf v. Asendorf, 162 Kan.......