Clarkson v. Mangrum

• Decision Date: 23 January 1960
• Docket Number: No. 41622,41622
• Citation: 186 Kan. 105,348 P.2d 607
• Parties: Nola Fay CLARKSON, Appellant, v. Damon M. MANGRUM and Margaret Whomans, Appellees.
• Court: Kansas Supreme Court

Page 607

348 P.2d 607

186 Kan. 105

Nola Fay CLARKSON, Appellant, v. Damon M. MANGRUM and Margaret Whomans, Appellees.

No. 41622.

Supreme Court of Kansas.

Jan. 23, 1960.

Syllabus by the Court

An appeal from the judgment of the trial court does not constitute an appeal from an order overruling a motion for a new trial; and where a party appeals from the judgment only and not from the ruling on his motion for a new trial, the ruling on such motion is not subject to appellate review. Following In re Estate of Young, 169 Kan. 20, 217 P.2d 269, and Baker v. John D. Maguire's, Inc., 176 Kan. 579, 272, P.2d 739.

Earl M. Clarkson, Jr., Wichita, argued the cause, and Wilmer E. Goering, Wichita, was with him on the briefs, for appellant.

H. E. Jones, Wichita, argued the cause, and A. W. Hershberger, Richard Jones, Wm. P. Thompson, Jerome E. Jones, Robert J. Roth and William, R. Smith, Wichita, were with him on the briefs, for appellees.

PARKER, Chief Justice.

This was an action to recover damages for personal injuries sustained in an automobile collision. It was tried by a jury which returned a general verdict for plaintiff against one defendant only, i. e., Margaret Whomans, the driver of one of the involved motor vehicles, for $1,454.35. The trial court approved the verdict and rendered judgment against such defendant for the damages allowed by the jury and the costs of the action. Thereafter plaintiff filed motion for a new trial as to damages only, on grounds the verdict was given under the influence of passion or prejudice and was in whole or in part contrary to the evidence.

Upon the overruling of her motion for a new trial plaintiff perfected the instant appeal under a notice which, so far as here pertinent, reads:

'You and each of you you are hereby notified that the Plaintiff, Nola Fay Clarkson, does hereby appeal to the Supreme Court of the State of Kansas from the judgment and verdict rendered on the 23rd day of April, 1959, and from all other motions, orders and rulings adverse to said Plaintiff.'

Notwithstanding the foregoing notice of appeal appellant's claims of error in this court are limited to three specifications of error. When carefully analyzed it may be said that each is founded upon the premise the trial court committed error in connection with its action in overruling her motion for a new trial.

Thus, from what has been heretofore related, it becomes obvious we are confronted, at the outset, with the jurisdictional question, which we are required to raise and determine (Curtis v. Kansas Bostwick Irrigation District, 182 Kan. 301, 320 P.2d 783), whether errors, alleged to have been committed by a trial court in overruling a motion for a new trial, are open for appellate review when--as here--a party appeals from the judgment rendered against him without appealing from the order overruling his motion for a new trial.

Resort to our decisions clearly discloses that such rulings are not subject to appellate review unless included in the notice of appeal.

See In re Estate of Young, 169 Kan. 20, 217 P.2d 269, which holds:

'An appeal perfected only from the judgment and decree of the trial court does not constitute an appeal from an order overruling a motion for new trial following Salt City Building, Loan & Savings Ass'n v. Peterson, 145 Kan. 765, 67 P.2d 564.' (Syl. 1.)

In Baker v. John D. Maguire's, Inc., 176 Kan. 579, 272 P.2d 739, 740, we held:

'Where a party appeals from a judgment rendered against him and not from the rulings on his motion for a new trial or other post trial motions, the rulings on such motions are not subject to appellate review.' (Syl.)

And see King v. King, 183 Kan. 406, 327 P.2d 865, 867, where it is held:

'An appeal perfected only from the 'judgment, order, decision and decree' does not constitute an appeal from an order overruling a motion for a new...