Connell v. State Highway Commission

• Decision Date: 25 January 1964
• Docket Number: No. 43352,43352
• Citation: 192 Kan. 371,388 P.2d 637
• Parties: O. J. CONNELL, Jr., and Eldon Schwemmer, Appellants, v. The STATE HIGHWAY COMMISSION of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 637

388 P.2d 637

192 Kan. 371

O. J. CONNELL, Jr., and Eldon Schwemmer, Appellants, v. The STATE HIGHWAY COMMISSION of Kansas, Appellee.

No. 43352.

Supreme Court of Kansas.

Jan. 25, 1964.

Syllabus by the Court

1. The nature, purpose and effect of pretrial procedure considered, and it is held an order made during the course of pretrial proceedings is not appealable until after final judgment, unless it has the effect of disposing of all the issues in the case.

2. For reasons stated in the opinion no useful purpose would be served by discussing the meaning of the words 'final order' or the phrase 'merits of the action or some parts thereof' as used in G.S.1949, 60-3302 and 60-3303 covering jurisdiction of appellate review, nor in reviewing the cases which have considered the statutes. These sections were repealed by the adoption of the new code which will control future appeals. The decisions which construed the old provisions are now obsolete except as they may be applicable to cases, if any, remaining on the appeal docket.

Warren Ralston, El Dorado, and Gale Moss, El Dorado, on the briefs, for appellants.

Robert M. Bond, El Dorado, and Charles N. Henson and Roy G. Lowe, Topeka, and L. J. Bond, El Dorado, on the briefs, for appellee.

HATCHER, Commissioner.

This controversy stems from pretrial rulings of the district court in an appeal from an award in a condemnation proceeding.

The appellants appealed to the district court from the appraisers' award in a condemnation proceeding instituted by the State Highway Commission. Parts of several adjoining tracts in which there were common interests were taken. However, the appeal to this court covers 7.22 acres more or less, exclusive of existing highways, described by metes and bounds, and located in the northeast quarter of section 20, township 25 south, range 6 east, Butler County, Kansas.

The appeal proceedings were pretried the day before the issues were to be tried on the merits. During the pretrial proceedings the appellants orally raised three legal questions which the district court determined. The next day when the case came on for trial the appellants presented a motion for determination of questions of law before trial. The motion presented the same questions as were presented at the pretrial conference. The court considered the motion and made the same determination, but it reduced its rulings to writing in the form of a joural entry.

The questions presented read:

'Wherefore, said O. J. Connell, Jr., and Eldon Schwemmer respectfully move the Court to determine, as a matter of law that:

'1. They are entitled to try their portion of the appeal with relation to said Tract 11(c) on the legal theory and rule that it was a part of a farm unit consisting of 1,058.7 acres of land; on February 24, 1962, and prior thereto.

'2. They are entitled to the legal interpretation that the area comprising the previously existing township road laying within the description as set out relating to said Tract 11(c) has not been condemned in the proceeding set out above;

'3. They are entitled to recover from the State Highway Commission as a part of the damages attributable to the taking of said Tract 11(c) such sum or amount, as a portion of the damage to the remainder of said 1,058.7 acres as would be reasonably required to connect said existing township road to the proposed new state highway. * * *'

The journal entry determining the questions states in part:

'Whereupon, counsel for landowners orally moved the Court for continuance of said cause and announced that the landowners would appeal from the ruling of the Court on said motion, and the Court finds that said cause should be continued until further order of the Court.

'It Is Therefore by the Court Considered, Ordered and Adjudged that that part of said motion contained in paragraphs 1 and 2 of the prayer thereof be and same hereby are overruled and denied and that paragraph 3 of the prayer of said motion and same hereby is sustained subject to such modifications dictated into the record by the Court.

'It Is Further by the Court Considered, Ordered and Adjudged that the trial of said cause be continued until further order of the Court.'

The appellants have appealed from the trial court's determination of the questions of alw adverse to their contentions and also from an order of the trial court reserving the determination of the question of the admissibility of a certain letter as evidence until the letter was introduced at the trial on the merits

At the outset we are confronted with the contention of the appellee that the orders and rulings from which the appeal was taken are not final orders and therefore the appeal should be dismissed.

We are forced to agree with appellee's contention as applied to rulings at pretrial proceedings.

The jurisdiction of this court on appeal is covered by G.S.1949, 60-3302. The provisions matterial to this controversy read:

'The supreme court may reverse, vacate or modify any of the following orders of the district court or a judge thereof, or of any other court of record, except a probate court. First--A final order. * * * Third--An order that involves the merits of an action, or some part thereof. * * *'

Final orders are defined by G.S.1949, 60-3303 as follows:

'A final order which may be vacated, modified or reversed as provided in this article is an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment. * * *'

This court at a very early date defined a final order or judgment as follows:

'A final judgment is one which finally decides and disposes of the whole merits of the case, and reserves no further question or direction for the future or further action of the court. * * *' (Brown v. Galena Mining and Smelting Co., 32 Kan. 528, 4 P. 1013, Syl. 2.)

The court has continued to restate the definition in considering appellate jurisdiction. In Cheney v. Cheney, 186 Kan. 743, 352 P.2d 959, it was held:

'For an order of the trial court to be final and appealable, it must be such as would result in the final determination of the action.' (Syl. 2.)

Many exceptions or distinctions have been noted in the decisions which appear to be in conflict with the general definition. This was perhaps due to the rather ambiguous statutory phrase, 'an order that involves the merits of an action, or some part thereof,' and was necessary prior to 1937 if the right to have errors of the trial court, which might have affected the right of a party, reviewed on appeal. The time for appeal might very well have expired between the time an erroneous order or ruling was made by the trial court and a final judgment was entered. This situation was corrected in 1937 (G.S.1949, 60-3314a) and clarified in 1951 by the following enactment:

'When an appeal or cross-appeal has been timely perfected the fact that some ruling of which the appealing or cross-appealing party complains was made more than two months before he perfected his appeal shall not prevent a review of the ruling.' (G.S.1961, 60-3314a.)

If a timely appeal was taken from a final judgment, previous orders could be reviewed regardless of the expiration of time. However, before the provision was enacted this court had committed itself to certain exceptions to the rule that a judgment or order to be appealable must result in a final determination of all issues. In deciding in excess of two hundred cases in which the question was raised, no doubt some inconsistencies have crept into the decisions. If not inconsistent, many of the decisions can only be distinguished by reference to the facts and circumstances of the particular case. (Allman v. Bird, 189 Kan. 331, 369 P.2d 387.)

It would serve no useful purpose to extend this opinion by discussing the meaning of the words 'final order' or the phrase 'merits of the action, or some parts thereof' as used in G.S.1949, 60-3302 and 60-3303, nor to review the cases which have considered the statutes. These sections were...