Buckwalter v. Henrion

• Decision Date: 08 July 1922
• Docket Number: 24,098,24,130
• Citation: 208 P. 645,111 Kan. 781
• Parties: LAURA BUCKWALTER, Appellant, v. W. S. HENRION et al., Appellees. W. B. BAILEY AND CELESTIA A. BAILEY, Appellants, v. W. S. HENRION et al., Appellees
• Court: Kansas Supreme Court

208 P. 645

111 Kan. 781

LAURA BUCKWALTER, Appellant, v. W. S. HENRION et al., Appellees.

W. B. BAILEY AND CELESTIA A. BAILEY, Appellants, v. W. S. HENRION et al., Appellees

Nos. 24,098, 24,130

Supreme Court of Kansas

July 8, 1922

Decided July, 1922.

Appeals from Sedgwick district court, division No. 2; THORNTON W. SARGENT, judge.

Judgments affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. APPEAL--Defective Abstract of Record--Motion to Dismiss Appeal. The want of a transcript of the evidence and a consequent defective abstract, and the want of an abstract of the pleadings, do not necessarily require the dismissal of an appeal; such defects merely restrict the scope of the appellate review.

2. SAME--Absence of Transcript--Presumptions as to Findings of Court. Where there is no transcript and the accuracy of appellants' statement of the evidence is disputed by the appellees, the supreme court must assume that the trial court's findings of fact are correct and that they were supported by the evidence.

3. STREET IMPROVEMENTS--Publication of Ordinances and Resolutions. Under the trial court's findings of fact, the ordinances and resolutions relating to the special improvements in controversy were lawfully published.

4. SAME--Charge of Fraud--Findings. All controversy concerning alleged fraud of city officials and private contractors is terminated when the trial court finds that there was no fraud, and when the evidence to support such allegations of fraud is not submitted for appellate review.

5. SAME--Findings of Trial Court. When the evidence has not been preserved, an assignment of error based upon the trial court's refusal to make requested findings of fact cannot be reviewed.

6. SAME--Incidental Expenses. A reasonable sum to cover items of incidental expenses necessarily incurred in constructing special improvements may lawfully be included in the cost thereof -- following Bailey v. City of Wichita, 108 Kan. 282, 284, 194 P. 928.

7. SAME--Apportionment of Costs Assessed Against Abutting Property Owners. Where the cost of special improvements on city streets is fairly apportioned and fairly assessed against the abutting properties benefited thereby, in compliance with a statute fairly designed to render approximate justice to the property owners concerned, there is no confiscation nor other breach of constitutional law, although the assessments in some instances may aggregate more than the current market value of the properties taxed therefor.

W. B. Bailey, of Wichita, R. B. Smith, and C. M. Brobst, both of Chanute, for the appellants.

Robert C. Foulston, George Siefkin, and James A. Conly, all of Wichita, for the appellees.

OPINION

DAWSON, J.:

These were taxpayers' suits to enjoin the officers of the city of Wichita from making assessments on plaintiffs' properties to pay for special improvements.

The defendants move to dismiss because the abstracts are defective. They do not contain the pleadings nor any abridgment of the pleadings. No transcript of the evidence was provided, and the evidence set out is merely statements from the memory of counsel who participated in the trial; and the accuracy of these statements is challenged.

However, the want of a transcript and consequent want of an abstract of the evidence do not always require a dismissal; the want of these merely limits the scope of the appellate review. ( Lasnier v. Martin, 102 Kan. 551, 171 P. 645.) Here the appellants set out the trial court's findings of fact. Now if the appellants conceded the correctness of these findings and could show that a different judgment should have been entered thereon, we would have something to review which would render the want of the pleadings, want of a transcript, and want of an abstract or defective abstract immaterial. But we find no such error specified, and while we are reluctant to allow the motion to dismiss, it is difficult to get a hold of something which we can properly discuss and review.

These appellant taxpayers should be advised that the supreme court must assume that the trial court's findings of fact are correct, when there is some substantial evidence to support them. (Bruington v. Wagoner, 100 Kan. 439, 164 P. 1057.) What was said in Bailey v. City of Wichita, 108 Kan. 282, 285, 194 P. 928, concerning the "Daily Record" was based upon the assumption that its insufficiency as a newspaper was not in dispute (108 Kan. 854), but here the trial court's finding clears up its status:

FINDING OF FACT No. 28.

"All ordinances, resolutions, proceedings, etc., in relation to this pavement were printed in The Daily Record.

"The Daily Record is published every day except Sunday and printed in the City of Wichita. . . .

"The City of Wichita advertised for bids in 1917 for an official paper in which to publish the ordinances and other proceedings which the City was required to publish. The Daily Record was the only paper which bid. The other papers failed to put in any bid, and The Daily Record was thereupon designated by the Board of Commissioners of the City of Wichita as the official paper of the City of Wichita and since said time has continued to be the official paper of the City of Wichita.

"In 1915, Judge Thomas C. Wilson, Judge of Division Number One of the District Court of Sedgwick County, Kansas, designated The Wichita Law & Mercantile Report, the predecessor of The Daily Record, as the official paper for District Court publications.

"The Daily Record was established in 1888 as The Wichita Law & Mercantile Report. The name was changed to The Daily Legal News in 1916 and to The Daily Record a few months later."

CONCLUSION OF LAW, No. 6.

"Under Section 1411 of the General Statutes of 1915, the newspaper in which the ordinances of the City of Wichita are required to be published need not be a newspaper of general circulation in the City of Wichita or Sedgwick County, Kansas. The Daily Record is a proper paper in which to publish the ordinances and resolutions."

(See, also, Gen. Stat. 1915, §§ 1412, 6001, 6002; Kansas City v. Overton, 68 Kan. 560, 75 P. 549.)

The next topic discussed in the Buckwalter brief relates to alleged fraud and dishonesty on the part of certain contractors and city officials in the letting and division of the concrete work and asphaltic work of the special improvements. But the trial court's finding recites:

"46. There was no fraud, conspiracy, connivance, oppression or dishonesty on the part of any of the officers, agents or employees of the City of Wichita in the letting of the contract for or in the construction of the Larimer Avenue improvement and the officials and employees of the City of Wichita in constructing said improvement acted in good faith."

That finding closes all controversy on this point. (Bayer v. Cockerill, 3 Kan. 282, syl. P 6; Farney v. Hauser, 109 Kan. 75, 198 P. 178, syl. P 7, 198 P. 178.)

In the Bailey case, No. 24,130, where the defective appeal similarly limits our opportunity for reviewing the matters complained of, we note a complaint because of the trial court's refusal to make certain requested findings of fact, but as we do not know what the issues were and there is no transcript of the evidence, nor unchallenged abstract of its contents we cannot say whether such findings were material to a...