Green v. State Highway Commission, No. 41276
| Court | United States State Supreme Court of Kansas |
| Writing for the Court | FATZER |
| Citation | 337 P.2d 657,184 Kan. 525 |
| Docket Number | No. 41276 |
| Decision Date | 11 April 1959 |
| Parties | Esther Smiley GREEN and Gerald Green, Appellants, v. STATE HIGHWAY COMMISSION of the State of Kansas, Appellee. |
Page 657
v.
STATE HIGHWAY COMMISSION of the State of Kansas, Appellee.
Rehearing Denied June 13, 1959.
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. Under such circumstance, the appeal reaches this court as if no motion for a new trial had been filed.
A. Harry Crane, Topeka, argued the cause, and Ward D. Martin, Arthur L. Claussen and Harvey D. Ashworth, Topeka, were with him on the briefs, for appellants.
Constance M. Achterberg, Topeka, and Howard W. Harper, Junction City, argued the cause, and W. B. Kirkpatrick, Asst. Atty. Gen., and Lee Hornbaker, Junction City, were with them on the briefs, for appellee.
FATZER, Justice.
This is an appeal from a judgment in a state highway condemnation case. In May, 1956, the State Highway Commission, desiring to enlarge the intersection of U. S. 40 Highway and Kansas Highway 13 (K 13), filed its petition for the appointment of appraisers for the taking of 3.43 acres from the landowners and their rights of access to approximately one and three-quarters miles on each side of U. S. 40 Highway east of the intersection, and 450 feet north and south of the intersection on the east side of K 13. This intersection is located approximately 50 miles west of Topeka, approximately sixteen miles east of Junction City, and approximately eight miles south of Manhattan. Appraisers were appointed who made an award on May 31, 1956, of $1,597.15 for abutters' rights, land taken, abstracting and fencing. Being dissatisfied with the appraisement, the landowners filed with the clerk of the district court their notice of appeal and a bond as provided by law. The commission did not appeal from the appraisement.
Page 658
The appeal was tried to a jury in the district court of Geary County, which returned a verdict and fixed the landowners' damages as follows:
"For the land actually taken $1375.00
For damages to land not taken 25.00
For necessary fence 600.00
---------
Total $2000.00"
[184 Kan. 526] Judgment was entered in harmony with the general verdict of the jury and the landowners timely perfected their appeal to this court from the verdict rendered, the judgment entered thereon, the overruling of the motion for a new trial, and the overruling of their oral motion to reconsider the court's ruling on the motion for a new trial. Because of their importance to the decision of this case, based upon conclusions hereafter announced, the landowners' specifications of error are fully quoted:
'1. The trial court admitted, over objection of appellants, certain incompetent evidence, and refused to admit certain competent evidence, which was prejudicial to appellants.
'2. The jury allowed no damages for the access taken although it was undisputed that the main entrance used by appellants to the pasture to the south from US 40 was taken, and that all access to the zoned commercial corner of US 40 and K 13 was taken plus additional access 100' to the north and 50' to the south thereof.
'3. The jury acted under bias and prejudice.'
In deciding this case we are first confronted with the problem that while the landowners perfected their appeal from the order overruling their motion for a new trial, they fail to specify that ruling as error for appellate review. Harsh as the rule may be, this court has repeatedly held that errors relating to matters occurring at the trial for which a new trial is asked, cannot be considered on appeal unless the action of the district court in overruling the motion is specified as error. Our cases on this...
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Blevins v. Daugherty, No. 41888
...P.2d 849; Hughes v. Hanlen, 186 Kan. 30, 348 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 ......
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Ford v. Sewell, No. 42360
...Marshall v. Bailey, 183 Kan. 310, 312, 327 P.2d 1034; Shelton v. Simpson, 184 Kan. 270, 336 P.2d 159; Green v. State Highway Commission, 184 Kan. 525, 337 P.2d 657, and has carefully adhered to the rule as announced in the McCarty case, supra. See, also, Baker v. Maguire's, Inc., 176 Kan. 5......
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Dick v. Dick, No. 42158
...1105; Jelinek v. Jelinek, 161 Kan. 362, 168 P.2d 547; Shelton v. Simpson, 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 In connection with the question whether the judgment is supported by ......
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Lackey v. Price, No. 42726
...be considered on appeal. (State ex rel. Fatzer v. Miller, 177 Kan. 324, 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, howeve......
-
Blevins v. Daugherty, No. 41888
...P.2d 849; Hughes v. Hanlen, 186 Kan. 30, 348 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 ......
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Ford v. Sewell, No. 42360
...Marshall v. Bailey, 183 Kan. 310, 312, 327 P.2d 1034; Shelton v. Simpson, 184 Kan. 270, 336 P.2d 159; Green v. State Highway Commission, 184 Kan. 525, 337 P.2d 657, and has carefully adhered to the rule as announced in the McCarty case, supra. See, also, Baker v. Maguire's, Inc., 176 Kan. 5......
-
Dick v. Dick, No. 42158
...1105; Jelinek v. Jelinek, 161 Kan. 362, 168 P.2d 547; Shelton v. Simpson, 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 In connection with the question whether the judgment is supported by ......
-
Lackey v. Price, No. 42726
...be considered on appeal. (State ex rel. Fatzer v. Miller, 177 Kan. 324, 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, howeve......