Carr v. Diamond

• Decision Date: 25 January 1964
• Docket Number: No. 42947,42947
• Citation: 192 Kan. 336,388 P.2d 589
• Parties: Terrance CARR d/b/a Carr Air Conditioning, Appellee, v. Grace DIAMOND, Defendant, and R. H. Macy & Co., Inc., 'Innes', a corporation (Additional Party Defendant), Appellant.
• Court: Kansas Supreme Court

Page 589

388 P.2d 589

192 Kan. 336

Terrance CARR d/b/a Carr Air Conditioning, Appellee, v. Grace DIAMOND, Defendant and R. H. Macy & Co., Inc., 'Innes', a corporation (Additional Party Defendant), Appellant.

No. 42947.

Supreme Court of Kansas.

Jan. 25, 1964.

Syllabus by the Court

An appellate court will not consider or decide questions raised on appeal when the record makes it clearly appear that a judgment of dismissal with prejudice has been entered by the court below, rendering any judgment which might be entered on appeal unavailing and ineffective.

Harold A. Zelinkoff, Wichita, appeared on the briefs for appellant.

Robert W. Kaplan and Calvin L. McMillan, Wichita, appeared on the briefs for appellee.

HATCHER, Commissioner.

This is an appeal from an order of the district court permitting an additional party to be made defendant after an appeal from the court of common pleas, Sedgwick County, Kansas, and the overruling of a motion to quash and a demurrer.

The facts will be briefly stated. The plaintiff brought an action against the defendant, Grace Diamond, in the court of common pleas of Sedgwick County, Kansas, to recover for labor and material furnished in connection with the repair of an air conditioner. The prayer was for the recovery of $197.72. Plaintiff obtained judgment in the sum of $7.23, the amount admitted to be due by defendant.

The plaintiff appealed to the district court. After perfecting his appeal, plaintiff filed a motion to have R. H. Macy & Co., Inc., 'Innes' made an additional party defendant. The motion was allowed and service of summons was duly made. Macy appeared specially and moved to quash the summons for the reason that the court had no jurisdiction of it as an added defendant. The motion was overruled.

Following other precedural steps, which are not material to the disposition of the controversy, plaintiff filed an amended bill of particulars. Macy filed a demurrer which was overruled.

The defendant, Macy, has appealed, specifying as error the overruling of the demurrer, the order making Macy an additional party defendant, and the refusal to quash the service of summons. The appeal was taken on December 15, 1961.

It has now been shown to this court that plaintiff, appellee, accepted payment from the defendant, Grace Diamond, in full settlement and satisfaction of his claims against all of the defendants. On motion of plaintiff a journal entry of dismissal was entered by the district court which reads:

'IT IS THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED that the Journal Entry of Dismissal with prejudice, signed by the Honorable B. Mack Bryant, be approved as of this 28th day of August, 1962, a regular day in the April, 1962, term of Court.

'IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that the defendant's, R. H. Macy & Co., Inc., 'Innes', appeal pending in the Supreme Court of Kansas, since the 15th day of December, 1961, and the rights thereunder cannot be cut off by the plaintiff by dismissing this case with prejudice in the District Court.'

Appellee has filed a motion to dismiss the appeal for the reason that appellant, one of the defendants below, has requested no affirmative relief and that the dismissal of the action with prejudice as to all of the defendants renders the appeal moot.

The appellant suggests that he has an absolute right to appeal from an order overruling a demurrer and the question is of such importance that it should be determined.

There is no...