Donaldson v. State Highway Commission

• Decision Date: 07 April 1962
• Docket Number: No. 42585,42585
• Citation: 189 Kan. 483,370 P.2d 83
• Parties: Paul J. DONALDSON and Louisene Donaldson, his wife, and C. A. Burnham and Mildred Burnham, his wife, Appellants, v. The STATE HIGHWAY COMMISSION of the State of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 83

370 P.2d 83

189 Kan. 483

Paul J. DONALDSON and Louisene Donaldson, his wife, and C A. Burnham and Mildred Burnham, his wife, Appellants, v. The STATE HIGHWAY COMMISSION of the State of Kansas, Appellee.

No. 42585.

Supreme Court of Kansas.

April 7, 1962.

Rehearing Denied May 10, 1962.

Syllabus by the Court.

1. The court has definitely held that a notice of appeal can not be amended to enlarge the scope of appeal unless a valid, subsisting appeal already exists (National Reserve Life Ins. Co. v. Hand, 188 Kan. 521, 363 P.2d 447).

2. Normally, the denial of a motion to dismiss does not constitute a final, appealable order (Runnels v. Montgomery Ward & Co., 165 Kan. 571, 195 P.2d 571).

3. In order for an appeal to lie from a trial error, the appeal must include an appeal from the order overruling the motion for new trial.

Kenneth P. Stewart and James R. Hanson, Wichita, argued the cause, and John E. Boyer, George J. Hondros and Harold T. Beck, Wichita, were with them on the briefs for appellants.

Ralph M. Hope, Wichita, argued the cause, and Charles N. Henson and Harold Henderson, Topeka, and W. F. Lilleston, George C. Spradling, Henry V. Gott, George Stallwitz, Richard W. Stavely, Charles S. Lindberg and Ronald M. Gott, Wichita, were with him on the briefs for appellee.

JACKSON, Justice.

The appeal herein involved is by the landowners as appellants from certain orders in a condemnation proceeding brought by the State Highway Commission in acquiring a new right of way for improved state highways.

The present appeal is unusual in that both sides attack the opposing parties' right to appear before the court. First of all, the highway commission challenges the landowners' appeal to this court and contends there is no valid appeal in this case. We must say that it would appear that the commission is correct. That being the case, we shall give only as brief an account of the facts herein as may be necessary to show the fault in the appellants' appeal.

The condemnation proceeding was filed in the Sedgwick district court on November 21, 1957. By December 18, 1957, the tract owned by the appellant landowners had been appraised at $57,280. On January 7, 1958, the commission filed a motion to approve the award of the commissioners and on the same day, the court approved the commissioners' award, fixed the appraisers' fees, and taxed the costs. It is also shown that on January 10, 1958, the highway commission paid in the total amount of the appraisers' awards to the clerk of the district court, and on January 20, 1959, the landowners herein applied to withdraw the $57,280, which the appraisers had allotted to them for the land taken for highway purposes. On the same day the landowners received their money.

Before the landowners received their money, the highway commission had on January 16, 1958 filed a verified condemnor's estimate of just compensation and also a notice of appeal. The commission's estimate placed the value of the landowners' property at the figure of $42,960. The above procedure adopted by the highway commission was at least an attempt to follow the procedure outlined in G.S. 1961 Supp. 26-102 as that section of the statute was amended in 1953. The idea of the commission is that the condemnation should become complete at once, with the title passing to the commission, but that the commission should retain the right to appeal as to the price paid for certain of the condemned lands.

It should also be noted that from the counter abstract, we find the above landowners also appealed from the award of the appraisers on January 17, 1958. The two appeals were consolidated later.

The above consolidated appeals from the award of the appraisers were finally tried by the district court to a jury from February 7 to 9, 1961, with the jury bringing in a verdict which amounted to $5,728 less than the landowners had received under the award of the appraisers. Thus the order of the district court was that the landowners pay back to the highway commission the above amount of $5,728 with interest at 6% per annum from the 9th day of February, 1961. Since the landowners appealed from the appraisers' award themselves, it would appear to make little difference whether the commission did or did not appeal. See Moore v. Kansas Turnpike Authority, 181 Kan. 840, 317 P.2d 384; and Jenkins v. Kansas Turnpike Authority, 181 Kan. 862, 317 P.2d 401.

Prior to the above trial, the landowners had...