Carson v. Eberth, 50782
| Decision Date | 16 March 1979 |
| Docket Number | No. 50782,50782 |
| Citation | 592 P.2d 113,3 Kan.App.2d 183 |
| Parties | David W. CARSON, Individually, and David W. Carson as Trustee for Barbara I. Fields, Herbert W. Fields, John G. Fields, Lee A. Fields, Edwin H. Fields and Brian W. Fields, Minors, Appellants, v. Robert EBERTH, Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. In the absence of a statute or rule giving district courts authority to dismiss appeals, the appellate court in which the appeal is pending has the exclusive responsibility for determining whether its jurisdiction has been properly invoked.
2. Under Rule No. 5.051 the district court has jurisdiction to dismiss an appeal only where the appellant has filed a notice of appeal in the district court but "has failed" to docket the appeal with the clerk of the appellate courts. Once an appeal is docketed the rule has no further applicability and the district court no longer has jurisdiction to dismiss the appeal.
3. The appellee's remedy after an appeal is docketed is a motion in the appellate court to dismiss under Rule No. 5.05 for substantial failure to comply with the rules. Such a motion is addressed to the sound discretion of the appellate court, in contrast to a Rule No. 5.051 motion where dismissal is mandatory if the appeal has not been docketed and the time for doing so has run.
4. Where a notice of appeal is filed after the district court's announcement of its decision (as by letter or memorandum decision) but before judgment is entered by journal entry or judgment form as required by K.S.A. 60-258, the notice may qualify as a "premature" notice if it meets the requirements of the first sentence of Rule No. 2.03.
5. A premature notice of appeal lies dormant until such time as judgment is entered. Under Rule No. 2.03 it then has the same effect as if the notice of appeal had been filed simultaneously with the actual entry of judgment. The time for docketing the appeal with the clerk of the appellate courts (and for taking any other action where the time is measured from the date the notice of appeal is filed) begins to run when the journal entry or judgment form is filed in the district court, since that is the time the notice of appeal is deemed to have been filed.
6. An application to reinstate an appeal is unnecessary where the appeal was in fact docketed before the entry of a district court's order purporting to dismiss it, since the order of dismissal was made without jurisdiction and is a nullity.
John H. Fields, Kansas City, for plaintiff.
James P. Lugar, Kansas City, for defendant.
This is an application to reinstate an appeal purportedly dismissed by the district court under Rule No. 5.051 (224 Kan. iv, Advance Sheet No. 4). Because the proceedings below reflect an apparent misapprehension of that and related rules governing appellate practice which may be widespread, we take this occasion to set out for the benefit of the bench and bar our interpretation of those rules, particularly as applied to this case.
We are not concerned with the underlying facts or the merits, but only with the events surrounding the entry of judgment and the taking of the appeal. The chronology is as follows:
December 20, 1978, trial court filed Memorandum Decision, to be effective on filing of Journal Entry.
December 26, 1978, Notice of Appeal filed in district court (having previously been served).
January 16, 1979, Journal Entry filed in district court.
January 19, 1979, appellee's Motion to Dismiss under Rule No. 5.051 filed in district court alleging failure to docket the appeal.
January 22, 1979, amended notice of appeal, making specific reference to Journal Entry, filed in district court (having been previously served).
January 23, 1979, appeal docketed in Court of Appeals.
January 26, 1979, appellee's motion to strike amended notice of appeal, filed in district court.
February 1, 1979, hearing in district court on appellee's motions.
February 22, 1979, Order of the district court purporting to dismiss the appeal.
March 2, 1979, Application to Reinstate Appeal filed in Court of Appeals.
The trial court's order of dismissal was wrong on two grounds: First, the district court had no jurisdiction to dismiss the appeal once it was docketed here, even if the docketing had been untimely. Second, the docketing was timely.
In the absence of statute or rule giving district courts authority to dismiss appeals, the appellate court in which the appeal is pending has the exclusive responsibility for determining whether its jurisdiction has been properly invoked. Johnson v. Johnson, 219 Kan. 190, Syl. P 1, 547 P.2d 360 (1976). There is no statute granting such authority to district courts. Under the rules in effect prior to January 10, 1977, district courts had such authority in a limited area, which included abandonment of the appeal through inaction. Johnson, Syl. P 2. Under the new rules of appellate practice, as they became effective January 10, 1977, there was no such authority. The result in a number of cases was an appeal in limbo, with a notice of appeal timely served and filed but no appeal docketed in the appellate court. The appellee in such a case was confronted with a dilemma: the district court had no jurisdiction to declare the appeal abandoned, and the appellate court couldn't act because the case was not before it.
To alleviate this situation the Supreme Court adopted Rule No. 5.051, effective September 14, 1978. The pertinent portion here is the first sentence: "The district court shall have jurisdiction to dismiss an appeal where the appellant has filed the notice of appeal in the district court but Has failed to docket the appeal with the clerk of the appellate courts." (Emphasis added.)
It will be seen that the grant of jurisdiction under the rule is limited to that time after the appellant has filed a notice of appeal, but "has failed" to docket the appeal. Thus, once an appeal is docketed the rule has no further applicability and the district court no longer has jurisdiction to dismiss the appeal. In this case the appeal was docketed on January 23, 1979. It follows that the district court had no jurisdiction to enter the order of dismissal on February 22, 1979.
Under Rule No. 2.04 (223 Kan. xxxii) an appellant has ten days in which to docket the appeal. Assuming late docketing, the appellee's remedy after an appeal is docketed is a motion in the...
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