City of Wichita v. Krauss

• Citation: 190 Kan. 635,378 P.2d 75
• Decision Date: 26 January 1963
• Docket Number: No. 42470,42470
• Parties: The CITY OF WICHITA, Kansas, a Municipal Corporation, Appellant, v. Jacob G. KRAUSS, Appellee, Maryland Casualty Company, a Corporation, Injunction Bond Surety, Appellant.
• Court: Kansas Supreme Court

Page 75

378 P.2d 75

190 Kan. 635

The CITY OF WICHITA, Kansas, a Municipal Corporation, Appellant, v. Jacob G. KRAUSS, Appellee,

Maryland Casualty Company, a Corporation, Injunction Bond

Surety, Appellant.

No. 42470.

Supreme Court of Kansas.

Jan. 26, 1963.

Syllabus by the Court

The record in a proceeding to recover damages, costs and expenses on a temporary injunction bond is examined and, as more fully set forth in the opinion, it is held: The district court acquired no jurisdiction of the defendant's application for such recovery and it error in entering judgment against the plaintiff and its surety on the temporary injunction bond.

James R. Hansos, Wichita, and Fred W. Aley, Paul J. Donaldson, Robt. B. Morton, Wichita, and J. Rodney Stone, Newton, for appellant, The City of Wichita, Kansas.

William P. Thompson, Wichita, for appellant, Maryland Casualty Co.

Kenneth G. Speir, Newton, and Vernon A. Stroberg, Herbert H. Sizemore and Richard F. Hrdlicka, Newton, for appellee, Jacob G. Krauss.

FATZER, Justice.

The appeal is from a judgment assessing damages on a temporary injunction bond. The action out of which it arises was commenced by the city of Wichita in September, 1956, for a temporary and permanent injunction enjoining the appellee, Jacob G. Krauss, from interfering with the installation of a pipeline in the city's right of way and easement across his land.

The petition alleged an easement and right of way had previously been acquired by the city in condemnation proceedings which set forth its public use as being.

'for the purpose of laying, installing, constructing, maintaining and operating pipes, lines, mains, valves, manholes, valve structures, electric transmission, control and communication circuits, and other appurtenances necessary for the construction, extension and improvement of the water supply and waterworks system of the City of Wichita, Kansas, for use in supplying said city and its environs and the inhabitants thereof with water.'

It was further alleged the condemnation proceeding were vaild and proper in all respects and the location of the easement and right of way was specifically described.

A full scale hearing on the issuance of the temporary injunction was had and both the city and the appellee presented evidence. The appellee took the position that because tract No. 15 which described the right of way across his land referred only to the installation of an air inlet and relief manhole and not to the entire pipeline, the city had no right to install a pipeline, hence, the injunction should not issue. After hearing all the evidence, the court ordered that the temporary injuction should issue upon the city's filing a statutory bond in the amount of $5,000. Accordingly, the city filed its statutory bond with the appellant, Maryland Casualty Company (Maryland) as surety, and the temporary injunction issued enjoining the appellee from interfering with the city's right of possession and with the installation of the pipeline. Thereafter, the appellee filed a motion to modify the temporary injunction on various grounds including, again, the ground that the right of way had been condemned only for an air inlet and relief manhole. That motion was overruled in its entirety. The appellee filed a demurrer to the city's petition, which was overruled. Thereafter, he answered and the city filed its reply.

On June 4, 1957, the case was fully tried by the court on its merits and the court took the matter under advisement until February 28, 1959. On that date, and during the February 1959 term, the district court advised counsel by letter that 'it is the finding and judgment of the court that this case is moot and the action should be and is dismissed. Costs taxed to plaintiff.' That ruling was journalized as of March 2, 1959, in a journal entry which was not submitted to counsel for the city for approval. In the judgment of dismissal, the court found that the temporary injunction heretofore issued 'should be, and the same hereby is, dissolved, vacated, set aside and held for naught'; that the cause 'be, and the same hereby is, dismissed,' and that 'all costs herein should be, and they hereby are, taxed against the plaintiff.'

On March 7, 1959, and during the February 1959 term, the appellee filed a 'Motion to Vacate Order of Dismissal' of March 2, 1959. The motion was not heard or ruled upon during the February 1959 term. On July 13, 1959, and during the May 1959 term, the court heard and sustained the appellee's motion and found that the city's installation of the water transmission line was wrongful and violated the appellee's rights and that he should be awarded judgment on all issues against the city. The court retained jurisdiction of the cause for the purpose of assessing damages sustained by reason of the wrongful issuance of the temporary injunction and the wrongful act of installing the water transmission line on the appellee's property. A journal entry specifying the court's judgment was not filed until September 17, 1959.

On July 16, 1959, and during the May 1959 term, the city filed motions for a new trial and to vacate the court's order and judgment of July 13, 1959. Thereafter, it perfected an appeal to this court from the order and judgment of July 13, 1959, when it appeared that its motions for a new trial and to vacate would not be heard within 60 days. The court heard the city's motion to vacate on September 17, 1959, and it sustained the motion and vacated and set aside the order and judgment rendered on July 13, 1959.

On January 6, 1960, the city dismissed its appeal in this court and the mandate was spread of record in the district court on February 4, 1960. On February 8, 1960, the opening day of the February 1960 term, the appellee filed an unverified 'Application for Assessment of Damages, Costs and Expenses on Temporary Injunction Bond.' On the same day, the court, by ex parte order, fixed the date for the ascertainment and awarding of damages, costs and expenses by reason of the issuance of the temporary injunction. The ex parte order directed the clerk of the district court to notify the city and Maryland of the time and place of the hearing.

The city and Maryland appeared specially on motions to quash the purported service of notice of the hearing of appellee's application. Both motions were overruled, and answers were filed by the city and Maryland. After reply, the appellee's application was heard on November 22, 1960, at which time motions to dismiss by the city and Maryland were overruled. The appellee offered expert testimony to the effect that a minimum attorney fee for his counsel would be $2,600 and he testified he employed his counsel with no fixed fee but the arrangement was 'a fair consideration of the amount of time that would be spent and so forth.' The appellee further testified that he had cashed checks from the condemnation proceedings in excess of $6,000. Over objections by the city and Maryland, the appellee's expert witness was permitted to testify that the minimum damage to his land by reason of the installation of the water transmission line was $5,000. Demurrers to the evidence were overruled and the court entered judgment against the city and Maryland for $5,000, of which amount $2,600 was allocated as attorney fees for appellee's counsel. Motions for a new trial were overruled, and this appeal followed.

The appellants first contend that the district court no longer had jurisdiction of the parties or the subject matter following the dismissal of the action on March 2, 1959, and the ending of the February term on May 10, 1959, and all further proceedings had therein were void and of no effect. The point is well taken....