Green v. State Highway Commission, 41276
| Decision Date | 13 June 1959 |
| Docket Number | No. 41276,41276 |
| Citation | 340 P.2d 927,185 Kan. 36 |
| Parties | Esther Smiley GREEN and Gerald Green, Appellants, v. STATE HIGHWAY COMMISSION of the State of Kansas, Appellee. |
| Court | Kansas Supreme Court |
A. Harry Crane, Ward D. Martin, Arthur L. Claussen and Harvey D. Ashworth, Topeka, were on the briefs for appellants.
Constance M. Achterberg, Topeka, W. B. Kirkpatrick, Asst. Atty. Gen., and Howard W. Harper and Lee Hornbaker, Junction City, were on the briefs for appellee.
The appellant landowners ask for a rehearing and a reversal of the decision previously rendered affirming this appeal upon the ground that where an appellant does not specify as error the overruling of his motion for a new trial, trial errors specified are not subject to appellate review, and under such circumstances, the appeal reaches this court as if no motion for a new trial had been filed (Green v. State Highway Commission, 184 Kan. 525, 337 P.2d 657).
The landowners first contend the rule to which this court has consistently adhered, that where the overruling of a motion for a new trial is not specified as error trial errors will not be reviewed, is inconsistent with modern principles of freedom from technical niceties in perfecting and presenting cases on appeal and defeats the purpose of courts in rendering substantial justice, and should be abandoned. In making the contention, the landowners concede the rule in question is well founded in the precedents of this court, but assert the time has come for serious reappraisal of its foundation and urgently request the court to discard it from procedure for appellate review.
In their brief in support of the petition for rehearing, the landowners have traced the history of the rule applied by this court in disposing of the present appeal. That rule was first adopted in Carson v Funk, 27 Kan. 524, and was taken from the state of Indiana (Woodall v. Greater, 51 Ind. 539; Lingerman v. Nave, 31 Ind. 222). In tracing the growth of the rule through the American Digest System, the landowners assert the only other states which have followed it are Illinois, Nebraska, Oklahoma, South Dakota and Texas, and that it has been subsequently discarded as a meaningless technicality which served no substantial purpose by Illinois, Nebraska, South Dakota and Texas, leaving only three rigid adherents to it, namely, Indiana, Kansas and Oklahoma.
Without prolonging the opinion on this point, suffice it to say this court adheres to and reaffirms the long established rule that to obtain appellate review of alleged trial errors in an appeal from an adverse judgment and an order overruling a ...
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...P.2d 634; Messmore v. Hand, 185 Kan. 774, 347 P.2d 402; Green v. State Highway Commission, 184 Kan. 525, 337 P.2d 657; rehearing, 185 Kan. 36, 340 P.2d 927; Ford v. Morrison, 182 Kan. 787, 324 P.2d 140; Jeffers v. Jeffers, 181 Kan. 515, 517, 313 P.2d 233; McIntyre v. Dickinson, 180 Kan. 710......
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...184 Kan. 270, 336 P.2d 159; Green v. State Highway Commission, 184 Kan. 525, 337 P.2d 657 [opinion on motion for rehearing at 185 Kan. 36, 340 P.2d 927]. In connection with the question whether the judgment is supported by the pleadings and the findings, attention is called to G.S.1949, 60-......
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...279 P.2d 223, 52 A.L.R.2d 691; Green v. State Highway Commission, 184 Kan. 525, 337 P.2d 657 [opinion on motion for rehearing at 185 Kan. 36, 340 P.2d 927].) Application of the rule--to which we adhere--does not, however, preclude appellate review of the orders overruling the demurrer to th......
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