Cimarron Co-op. Equity Exchange v. Warner

• Decision Date: 30 November 1948
• Docket Number: 37288.
• Citation: 166 Kan. 190,200 P.2d 283
• Parties: CIMARRON CO-OPERATIVE EQUITY EXCHANGE v. WARNER et al.
• Court: Kansas Supreme Court

200 P.2d 283

166 Kan. 190

CIMARRON CO-OPERATIVE EQUITY EXCHANGE v. WARNER et al.

No. 37288.

Supreme Court of Kansas

November 30, 1948

Appeal from District Court, Gray County; Karl Miller, Judge.

Action to recover possession of and to eject defendants from a portion of a tract of leased land by Cimarron Co-operative Equity Exchange, a corporation, against Leigh Warner and Forrest Luther, a copartnership, doing business as Luther &amp Warner. From the judgment, the defendants appeal.

Appeal dismissed.

Syllabus by the Court.

The record in an independent action in the nature of ejectment for the possession of real estate and to oust defendants where an appeal was taken more than two months after the judgment but less than two months after an order overruling a motion for new trial, is examined, and it is held that all questions raised by defendants' specification of errors and relied on by them as grounds for a new trial pertain to purely legal questions inherent in the judgment and are therefore not subject to appellate review.

C. C Linley, of Cimarron (Logan N. Green and Roland H. Tate, both of Garden City, on the brief), for appellants.

A. M. Fleming, of Garden City (C. E. Vance; Clifford R. Hope and Bert J. Vance, all of Garden City, on the brief), for appellee.

PARKER, Justice.

This was an action to recover possession of and eject defendants from a portion of a tract of land leased by plaintiff from the Atchison, Topeka and Santa Fe Railway Company in the city of Cimarron. The plaintiff recovered and the defendants appeal.

For purposes of appellate review the essential facts are not in dispute and their substance can be briefly summarized. For many years plaintiff had been in possession of the land in controversy under a lease with the railroad company on which it had erected and operated its own elevator. In 1931 through some arrangement with one C. R. Blanton it permitted such person to erect and operate another elevator on a portion of the premises. Later Blanton sold his elevator to the defendants who continued to operate it, paying plaintiff for the privilege of occupying the portion of the tract on which it was located. Some time in 1945 plaintiff decided its business required sole possession of the premises and on December 1, 1945, notified defendants that because of a building program it desired possession of the tract on which their elevator was located and instructed them to remove such building therefrom. Defendants failed and refused to give possession and this action followed.

No useful purpose will be served by detailing allegations of the pleadings or relating the evidence on which the trial court based its judgment. It will suffice to say that after a full and complete trial, on motion of the plaintiff, the court took the case from the jury and on November 11, 1947 rendered judgment generally in favor of plaintiff and against defendants. In such judgment it found plaintiff was entitled to recover possession of the portion of the tract sued for and gave defendants the right to remove all buildings, structures and other property owned by them and located thereon. Defendants then filed a motion for new trial which was overruled on January 6, 1948. Notice of appeal was not served on opposing counsel or with the clerk of the court until January 30, 1948, more than two months after rendition of the judgment. That, of course, was too late to appeal from the judgment but in time to appeal from the order overruling the motion for new trial. G.S.1947 Supp. 60-3309.

Appellants' specifications of errors reads:

'1. The Court erred in overruling and not sustaining appellants' motion to make more definite and certain.

'2. The Court erred in overruling and not sustaining appellants' motion to elect.

'3. The Court erred in overruling and not sustaining appellants' demurrer.

'4. The Court erred in overruling appellants' motion for a new trial.

'5. The Court erred in rendering judgment in favor of the appellee and against appellants.'

At the outset appellee directs our attention to the well established rule that unless an appeal is perfected in time we are without jurisdiction to entertain it (e. g., see In re Estate of Pennington, 154 Kan. 531, 119 P.2d 488; Achenbach v. Baker, 157 Kan. 292, 139 P.2d 407). It then points to our decisions (In re Estate of Kerrigan, 165 Kan. 245, 194 P.2d 473; McCarty v. McCarty, 163 Kan. 427, 182 P.2d 881; Wilcox v. Wilcox, 162 Kan. 582, 178 P.2d 233; Stinson v. McConnell, 160 Kan. 1, 159 P.2d 406; Robbins v. Kansas City, 160 Kan. 425, 163 P.2d 630 and Palmer v. Helmer, 159 Kan. 647, 157 P.2d 531) holding the time for appeal from rulings on purely legal questions inherent in a judgment cannot be extended by merely filing a motion for new trial and challenges the appellants' right to be heard on any questions raised by and presented for review under their specification of errors.

Obviously, errors 1, 2 and 3 as specified relate only to questions of law passed upon by the trial court prior to the commencement of the trial which inhere in the judgment and come within the rule announced in the foregoing decisions. Therefore since there was no appeal from the judgment within the prescribed statutory time they are not proper subjects for appellate review. The same holds true of specification No. 5 but for an entirely different reason. This court has repeatedly held that an assignment of error to the effect the trial court erred in rendering its judgment amounts to nothing more than a statement the decision is wrong, does not specify any error and presents no reviewable ruling to an appellate court. (See Hamilton v. Binger, 162 Kan. 415, 176 P.2d 553, and cases there cited.)

Specification of error No. 4 requires consideration of the motion for new trial. As it is examined we note that included in its grounds are the legal questions appellants sought to have reviewed under the first three specifications of errors to which we have heretofore referred. The fact they are so included in no sense changes their...