Corbin v. Moser

• Decision Date: 10 July 1965
• Docket Number: No. 44141,44141
• Citation: 403 P.2d 800,195 Kan. 252
• Parties: Warren W. CORBIN and Harriet B. Corbin, Appellants, v. Veva MOSER, Virgil L. Moser, Edward R. Moser, Eunice I. Dalton (also known as Mrs. L. A. Dalton), Mrs. M. S. Wikoff (also known as Ethel Wikoff), W. H. Coutts, Jr., Guardian of the person and of the Estate of Veva Moser, an Incompetent Person, and W. H. Coutts, III, Administrator of the Estate of Elizabeth Moser, Deceased, and the Unknown Heirs, Executors, Administrators, Devisees, Trustees, Creditors, and Assigns of Charies E. Moser, Deceased, Appellees.
• Court: Kansas Supreme Court

Page 800

403 P.2d 800

195 Kan. 252

Warren W. CORBIN and Harriet B. Corbin, Appellants, v. Veva MOSER, Virgil L. Moser, Edward R. Moser, Eunice I Dalton (also known as Mrs. L. A. Dalton), Mrs. M. S. Wikoff (also known as Ethel Wikoff), W. H. Coutts, Jr., Guardian of the person and of the Estate of Veva Moser, an Incompetent Person, and W. H. Coutts, III, Administrator of the Estate of Elizabeth Moser, Deceased, and the Unknown Heirs Executors, Administrators, Devisees, Trustees, Creditors and Assigns of Charies E. Moser, Deceased, Appellees.

No. 44141.

Supreme Court of Kansas.

July 10, 1965.

Syllabus by the Court

1. Under the provisions of K.S.A. 60-258 the clerk of the court does not enter judgments on the appearance docket unless directed by the judge except on jury verdicts, and a judgment is not effective until entered on the appearance docket or a journal entry is filed with the clerk at the direction of the judge.

2. The time for appeal under the provisions of K.S.A. 60-2103(a) commences to run at the time the judgment is entered on the appearance docket or a journal entry is filed with the clerk of the court at the direction of the judge.

3. The language in a deed conveying a quarter section of land which reads: 'except a one Sixteenth (1/16) Royalty interest of all oil, gas or minerals in place * * * which oil, gas and minerals is reserved to grantors; * * *' is construed to reserve a one-half royalty interest to the grantor and not a mineral interest.

4. Where there is an ambiguity in a deed making two constructions possible, one of which will be more favorable to the grantee and the other more favorable to the grantor, and there is no outside aid to construction, that method of construction most favorable to the grantee will be selected.

Ervin E. Grant, El Dorado, argued the cause and was on the briefs for appellants.

Verne M. Laing, Wichita, argued the cause, and Lester L. Morris, Ferd E. Evans, Jr., Ralph R. Brock, Joseph W. Kennedy, C. Robert Bell, Jr., and Robert L. Driscoll, Wichita, W. H. Coutts, Jr. and W. H. Coutts, III, El Dorado, and Donald L. Allegrucci, El Dorado, were with him on the briefs for appellees.

HATCHER, Commissioner.

This appeal stems from a controversy over the construction of an oil and gas exception or reservation in a deed. The action was in the nature of a suit to quiet title.

There are no disputed facts. In 1926, Charles F. Moser and Lizzie, his wife, executed a deed to Margery Boston covering a quarter section of land:

'* * * containing 160 acres more or less, according to Government Survey except a one Sixteenth (1/16) Royalty interest of all oil, gas, or minerals in place on the West half of said Northwest Quarter (NW1/4) of said above described land, which oil, gas, and mineral is reserved to grantors; and also except the mineral rights on the East Half of said quarter, which have been heretofore conveyed away by grantors.'

It will be noted that the reservation in question covers only the west one-half of the quarter section. At the time the reservation was created the land was covered by an oil and gas lease. Following some five conveyances by deed the plaintiffs became the owners of the land. It will be mentioned, for what it is worth, that only two of the five deeds referred to the reservation.

Charles F. Moser died on April 25, 1944, leaving a last will and testament which did not specifically mention any royalty interest in the real estate in question, nor were any royalty interests or other mineral interests inventoried or appraised in the estate. Elizabeth Moser died on the 4th day of March, 1960, without a will, and the inventory listed 'a one sixteenth royalty interest of all oil, gas, or minerals in place on the West Half (W 1/2) of the Northwest Quarter (NW1/4) of Section 26, Township 26 South, Range 4 East. * * *'

The trial court found that the Moser deed reserved a mineral interest in the land and 'that the through mistake or inadvertence the mineral interest should be one-half rather than the one-sixteenth mentioned. * * *'

The plaintiffs, the present landowners, have appealed.

Before considering the merits of the appeal we must give attention to the appellees' motion to dismiss the appeal because of appellants' alleged failure to comply with K.S.A. 60-2103(a) and 60-258.

At the risk of unduly extending this opinion, it is necessary to state the procedural facts which brought about the dispute.

On October 16, 1963, the case was tried to the court. Later briefs were filed and on February 10, 1964, the trial court mailed a letter to counsel of record which read, insofar as material here, as follows:

'The court further finds that the deed of the date of September 23, 1926 wherein Charles F. Moser and Lizzie Moser, his wife, were grantors and Margery J. Boston was the grantee, said warranty deed being recorded in Volume 157 of Deeds at page 603 in the office of the Register of Deeds of Butler County, Kansas, reserved a mineral interest in the real estate. The court further finds that through mistake and inadvertence the mineral interest should be one-half rather than the one-sixteenth mentioned herein and that because of this Charles F. Moser, his heirs and assigns own an undivided one-half in the minerals under the West half of the property. * * *

* * *

* * *

'Costs are to be assessed against Plaintiff.'

On March 9, 1964, the trial court addressed another letter to counsel which read:

'As attorneys for the respective parties and supplementing my written memorandum opinion of February 10, 1964, I hereby direct that the form of the judgment rendered herein on February 10, 1964, is to be settled by a journal entry to be prepared by the parties who shall submit the same to me for signature, and I shall then file it with the Clerk of the District Court. In view of the fact that this is a quiet title action and will appear on abstracts, I am directing that the judgment be entered in this manner.'

It appears this letter was mailed only to local counsel.

On July 9, 1964, the journal entry of judgment was filed. The notice of appeal was filed August 4, 1964. The appellees contend that the letter of the court dated February 10, 1964, constituted the judgment of the court and that the appeal was not taken in time.

We must examine the statutes. The time for appeal is governed by the provisions of K.S.A. 60-2103(a) which, with certain exceptions not material here, reads:

'Appeal to supreme court. (a) When and how taken. When an appeal is permitted by law from a district court to the supreme court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment, as provided by section 60-258, * * *.'

K.S.A. 60-258(a) provides in part:

'* * * When the judge directs that a party recover only money or costs or that all relief be denied, the clerk shall enter judgment forthwith upon receipt by him of the direction; but when the court directs entry to judgment for other relief, the judge shall promptly settle or approve the form of the judgment and direct that it be entered by the clerk.'

K.S.A. 60-258(b) further provides:

'If judgment is to be entered on the verdict of a jury, or by direction of the judge forthwith, the clerk shall make a notation of the judgment on the appearance docket as provided by section 60-2601, and such notation shall constitute the entry of judgment, and no journal entry or other document shall be required to render the judgment effective. If the judge directs that the form of the judgment is to be settled by a journal entry or other document, it shall be prepared in accordance with the directions of the judge who shall then sign the same and cause it to be filed with the clerk. Such filing shall constitute the entry of the judgment, and it shall not be effective before such filing. The clerk shall forthwith note the filing of the journal entry on the appearance docket together with a brief abstract of the nature of the judgment.'

It will be noted that the only instance in which the clerk enters judgment without the direction of the trial judge is on a jury verdict. Otherwise the judge is to direct the clerk as to the judgment to be entered. The judgment cannot be entered until the judge directs, and the judgment is not effective until entered on the appearance docket.

The entry in the appearance docket governs the effective date of all judgment, except judgment by journal entry becomes effective when filed with the clerk but the clerk is directed to docket such judgments immediately.

A simple examination of the appearance docket would have determined this procedural question. The record is silent as to what disposition was made of the February 10, 1964, letter.

We have requested the clerk of this court to contact the clerk of the district court for the purpose of determining what disposition was made of the letter. We are informed that the decision indicated in the letter was never entered on the appearance docket and that the judge never directed the clerk to so enter it. No judgment was entered in the appearance docket until the journal entry was filed July 9, 1964. Until that time there was no judgment from which to appeal. It necessarily results that an appeal filed within thirty days from that date was in time.

The purpose of K.S.A. 60-258 is to fix a time certain when a judgment becomes effective and to fix a place certain where counsel may determine the effective date.

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