Du Pont v. Lotus Oil Co., 37833

• Decision Date: 28 January 1950
• Docket Number: No. 37833,37833
• Citation: 213 P.2d 975,168 Kan. 544
• Parties: DU PONT et al. v. LOTUS OIL CO. et al.
• Court: Kansas Supreme Court

Page 975

213 P.2d 975

168 Kan. 544

DU PONT et al. v. LOTUS OIL CO. et al.

No. 37833.

Supreme Court of Kansas.

Jan. 28, 1950.

Rehearing Denied March 17, 1950.

Syllabus by the Court.

1. Rule No. 5 of this court (See 166 Kan. XI; G.S.1935, 60-3826 'Rules of the Supreme Court' No. 5) long in force and effect, provides that the party seeking appellate review of a trial court's judgment shall include in his abstract a specification of the errors of which he complains, separately set forth and numbered.

2. The rule referred to in paragraph 1 of this syllabus is designed to promote definiteness, fairness and orderly procedure on appellate review and the sound and substantial reasons supporting it not only require its retention but its rigid enforcement.

3. When an appellant's right to be heard on appeal is challenged on grounds of noncompliance with such rule and it appears from the record he has made no attempt to conform with its requirements until the day the cause is set for argument his appeal with be dismissed Arthur H. Snyder, of Hutchinson, argued the cause, and Bronce Jackson, of Lyons, was with him on the briefs for the appellants.

Frederick Woleslagel, of Lyons, argued the cause, and J. Paul Stevenson; T. Gra Gaston, and Granville M. Bush, all of Lyons, were with him on the briefs for the appellees.

PARKER, Justice.

This was an action to cancel an oil and gas lease and quiet title to real estate for failure of the defendant lessees to produce oil from the premises covered by the lease beyond the expiration of the definite or primary term of that instrument. The plaintiffs recovered and the defendants appeal. Plaintiffs cross-appeal from the trial court's order granting defendants a period of sixty days in which to remove their personal property, including casing in the hole, from the leased premises.

Before any consideration whatsoever can be given to the merits of this appeal we are constrained to dispose of a claim, advanced and strenuously urged by appellees, to the effect that because of appellants' failure to include any specification of errors in their abstract as required by the rule of this court the appeal presents no question for review and should be dismissed.

This challenge of appellants' right to be heard is based upon that portion of Rule No. 5 (See 166 Kan. XI; G.S.1935, 60-3826 'Rules of the Supreme Court' No. 6) long in force and effect, which reads: 'The appellant's abstract shall include a specification of the errors complained of, separately set forth and numbered. * * *'

Resort to the record reveals appellants have made no attempt to comply with the rule in either their abstract or brief. In fact they make no contention to the contrary but attempt to avoid its application by filing a motion on the very day the cause was argued, which was resisted by appellees, requesting permission to supplement their abstract by inclusion instanter of a number of rulings complained of and set forth in the notice given by them in connection with the perfection of their appeal. While the court permitted the filing of this motion and allowed the parties to argue the cause it took no action with respect to the request therein made and reserved its ruling thereon. Having given that matter consideration it can now be said we have decided the motion came too late, is not to be regarded as a compliance with the requirements of Rule No. 5, and should be denied.

It is true that in the past we have been lenient with appellants who saw fit to disregard the clear and unequivocal requirements of Rule 5. However, our opinions make it crystal clear our action in that respect has not been due to any thought the rule is arbitrary or of slight importance or that the reasons for its existence are not sound and substantial. Statements of such character, and others pointing out that noncompliance with its provisions justify the summary dismissal of appeals, are to be found in many of our decisions. For a few of the more recent ones see Cooley v. Hebrew, 165 Kan. 500, 502, 195 P.2d 602; Topping v. Tuckel, 159 Kan. 387, 155 P.2d 427; Federal Farm Mortgage Corp. v. Bolinger, 152 Kan. 700, 108 P.2d 492.

In at least two of our later cases, see Lambeth v. Bogart, 155 Kan. 413, 125 P.2d 377; Hall v. Eells, 157 Kan. 551, 142 P.2d 703, appeals were dismissed for failure to comply with its...