Cribbs v. Pacific Intermountain Exp., 46255
| Decision Date | 04 March 1972 |
| Docket Number | No. 46255,46255 |
| Citation | 208 Kan. 813,494 P.2d 1142 |
| Parties | Ocie CRIBBS, Appellant, v. PACIFIC INTERMOUNTAIN EXPRESS, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Rule 6(p) of this court relating to appellate practice (205 Kan. xxxi-xxxii) mandates dismissal of an appeal for failure to complete any step necessary to its docketing within the period of time prescribed therein. Extension of time for the completion of any such step may be granted by the trial court upon application made before expiration of the prescribed period of time. Where timely application for extension is not made the trial court is vested with discretion to determine whether such failure was the result of excusable neglect and to grant further extension of time where appropriate under the particular circumstances.
2. Once an appeal has been declared abandoned and dismissed by the trial court it is incumbent upon the appellant to take the action further prescribed in Rule 6(p) for the reinstatement of such appeal.
3. Where upon motion by the appellee an appeal has been declared abandoned and dimissed by the trial court an appeal from the trial court's further denial of the appellant's motion to rehear the motion to dismiss cannot be used to circumvent the authority vested by Rule 6(p) in the trial court to reinstate the appeal.
I. F. Bradley, Jr., Kansas City, argued the cause and was on the brief for appellant.
Robert D. Benham, of McAnany, Van Cleave & Phillips, Kansas City, argued the cause and was on the brief for appellee.
HARMAN, Commissioner:
Plaintiff-appellant Ocie Cribbs appeals from an adverse ruling terminating his action for personal injuries because of insufficiency of his evidence offered in a jury trial.
At the outset defendant-appellee Pacific Intermountain Express challenges appellant's right to be heard here.
Appellee asserts several procedural deficiencies and irregularities on appellant's part in processing the appeal but we limit attention to those which must determine disposition of the case.
A stenographic transcript of the proceedings in the trial court was necessary for appellate review of the order complained of. After filing his notice of appeal in the trial court appellant failed timely to serve upon appellee copy of a written request to the court reporter for such transcript and to make proof of such service as required by Rule 6(a) of this court relating to appellate practice (205 Kan. xxviii). This delinquency triggered the filing by appellee of a motion to dismiss the appeal which the trial court heard and sustained. Thereafter appellant chose only to file in the trial court a motion to rehear appellee's motion to dismiss and then when that motion was denied to file a notice of appeal from the trial court's denial order.
Thereafter appellant continued to process his appeal in this court as though nothing untoward had occurred, filing successively a record on appeal, supplement to record (in the preparation of neither of which appellee participated), and a brief. Meanwhile appellee filed in this court its motion dismiss the appeal, which was denied with leave to renew at the hearing of the appeal upon its merits. During oral orgument appellee renewed that motion which, upon its full presentation and consideration, we now sustain.
Implicit in the trial court's initial order dismissing the appeal was a finding that appellant had abandoned his appeal by reason of his failure timely to serve upon appellee copy of his written request to the court reporter for a transcript of the trial proceedings.
Rule 6(p) (205 Kan. xxxi-xxxii) provides:
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...794, 522 P.2d 383 (1974); Van Brunt, Executrix v. Jackson, 212 Kan. 621, 625, 512 P.2d 517 (1973); See also Cribbs v. Pacific Intermountain Express,208 Kan. 813, 494 P.2d 1142 (1972).) Absent a showing of abuse of discretion, the trial court's order will not be disturbed. (Van Brunt, Execut......
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