City of Bonner Springs v. Clark
| Decision Date | 22 December 1978 |
| Docket Number | No. 49509,49509 |
| Citation | 3 Kan.App.2d 8,588 P.2d 477 |
| Parties | CITY OF BONNER SPRINGS, Kansas, Appellee, v. Bill CLARK and Sandy Clark, Appellants. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
In order to perfect an appeal from a conviction in municipal court to the district court it is required by K.S.A.1977 Supp. 22-3609(2) that a written notice of appeal be filed in municipal court. Failure to do so is a jurisdictional defect which is not cured by filing a notice of appeal in district court.
J. R. Russell, Kansas City, for appellants.
Thomas E. Osborn, Kansas City, for appellee.
Before FOTH, C. J., and REES and SWINEHART, JJ.
The issue in this case is whether an appeal from a conviction in municipal court may be taken by filing a notice of appeal in district court rather than in the municipal court as prescribed by statute.
On April 27, 1977, the appellants Bill and Sandy Clark were convicted in municipal court of violating ordinances of the City of Bonner Springs and were fined a total of $150.00. They sought to appeal and secure a stay of the judgment as authorized by K.S.A. 12-4601, part of the 1973 code of procedure for municipal courts. The procedure to be followed is designated by K.S.A. 12-4602:
When the appellants announced in municipal court that they intended to appeal, that court fixed an appeal bond in the amount of either $100 or $135, apparently in cash. (The municipal court record is not before us because, for reasons to become apparent, it was never certified to the district court.)
Not satisfied with that order, on May 4, appellants prevailed on a judge of the Wyandotte County District Court to grant an Ex parte order approving a personal recognizance bond. The same day they filed a notice of appeal with the clerk of the district court, and delivered a copy to the city attorney. No notice was ever filed with the municipal court.
In due course the city moved to dismiss the appeal for lack of jurisdiction. The motion was sustained, and this appeal from the dismissal was duly taken to this court.
The procedural statute referred to in K.S.A. 12-4602, quoted above, is K.S.A.1977 Supp. 22-3609:
As may be seen, subsection (2) requires a written notice of appeal to be filed in municipal court. That is the filing which triggers that court's action in certifying the record to the district court. The statute is clear and unambiguous, and appears to provide a straightforward and logical method for...
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Lowe v. Bloom
...364 So.2d 469 (Fla.1978); Loter v. Metropolitan Life Ins. Co., 229 Iowa 1127, 1133, 296 N.W. 227, 230 (1941); City of Bonner Springs v. Clark, 3 Kan.App.2d 8, 588 P.2d 477 (1978); Gerbig v. Gerbig, 60 Nev. 292, 108 P.2d 317 (1940); In re Horning's Will, 42 N.E.2d 554 (Ohio App.1942). Contra......
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City of Wichita v. Mesler, 55115
...and timely file a notice of appeal is thus a jurisdictional defect, which cannot be waived by the courts. City of Bonner Springs v. Clark, 3 Kan.App.2d 8, 10, 588 P.2d 477 (1978), and City of Overland Park v. Nikias, 209 Kan. 643, 648, 498 P.2d 56 Subsection (1) of K.S.A. 22-3609 defines th......
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City of Lenexa v. Higgins
...court by filing a written notice of appeal as required by K.S.A. 22-3609(2) is a jurisdictional defect. City of Bonner Springs v. Clark, 3 Kan.App.2d 8, 588 P.2d 477 (1978). See also City of Overland Park v. Nikias, 209 Kan. 643, Syl. p 4, 498 P.2d 56 (1972) ("In an appeal from orders of th......
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City of Garnett v. Zwiener, s. 52169
...It is generally held that a statute authorizing an appeal must be complied with to grant jurisdiction. City of Bonner Springs v. Clark, 3 Kan.App.2d 8, 588 P.2d 477 (1978). The case of Thompson v. Groendyke Transport, Inc., 182 Kan. 616, 322 P.2d 341 (1958), concerned the statute, G.S.1949,......