Heniff v. Clausen

• Decision Date: 24 January 1942
• Docket Number: 35393.
• Citation: 121 P.2d 196,154 Kan. 717
• Parties: HENIFF v. CLAUSEN.
• Court: Kansas Supreme Court

121 P.2d 196

154 Kan. 717

HENIFF v. CLAUSEN.

No. 35393.

Supreme Court of Kansas

January 24, 1942

Syllabus by the Court.

Where an appeal was taken from an order overruling a motion for new trial and the ruling overruling the motion for new trial was not assigned as error, appellant "waived" objection to such ruling.

Where an appeal was taken from an order overruling a motion for new trial and the overruling of the motion for new trial was not assigned as error, errors arising on the trial of the cause could not be reviewed.

An assignment that the court erred in rendering judgment against appellant presents no question for review.

Where notice of appeal was not served and filed within two months from entry of judgment appealed from, as required by statute alleged errors arising from the judgment or thereto were not open to review. Gen.St.Supp.1939, 60-3309.

The statutory provision that when a party appeals after final judgment, the fact that some ruling complained of was made more than two months before appeal was perfected shall not prevent a review of such ruling, was designed to avoid rule requiring appeal from ruling on a demurrer or any separable appealable order made before judgment on the merits to be taken within six months from date of ruling without regard to time of judgment upon the merits, and was never intended to extend the time for appeal from a final judgment upon the merits. Gen.St.1935, 60-3309; Gen.St.Supp.1939, 60-3309 60-3314a.

Where appeal from a judgment is not perfected within two months the judgment is not open to appellate review, but trial errors which have been pressed on the attention of the trial court in a motion for new trial may be reviewed where appeal from adverse ruling on such motion is perfected in time. Gen.St.Supp.1939, 60-3309.

Where upon appeal, which was perfected within two months after motion for new trial was overruled, but not until more than two years after judgment was rendered, no complaint was made of the order overruling motion for new trial, the appeal must be dismissed, since there was nothing before the Supreme Court for review. Gen.St.Supp. 1939, 60-3309, 60-3314a.

1. When an appeal is taken from an order overruling motion for a new trial, and that ruling is not assigned as error, any objection appellant ever had to that ruling will be deemed to have been waived.

2. When the overruling of a motion for a new trial is not assigned as error, trial errors cannot be reviewed.

3. A statement that the court erred in rendering judgment against appellant presents no specific question for review.

4. G.S.1939 Supp. 60-3314a construed and applied.

5. Judgment was rendered February 24, 1939; the motion for a new trial was overruled May 16, 1941; and the appeal was perfected July 14, 1941. In this court no complaint is made of the order overruling the motion for a new trial. Held, the appeal is too late.

Appeal from District Court, Crawford County; Leland M. Resler, Judge.

Action by Thomas F. Heniff against Albert Clausen to enjoin defendant from obstructing or in any way interfering with plaintiff's use of a right of way of ingress and egress across defendant's land from and to a public highway. From the judgment, order and decision of the court, overruling his motion for a new trial and from all adverse rulings, findings, conclusions and the judgment of the court against defendant, defendant appeals.

Appeal dismissed.

Jo. E. Gaitskill and Geo. F. Beezley, both of Girard, for appellant.

D. G. Smith, of Girard, for appellee.

HARVEY Justice.

This was an action to enjoin defendant from obstructing or in any way interfering with plaintiff's use of a right of way of ingress and egress across defendant's land from and to a public highway which plaintiff alleged he had acquired by implication from the common grantor of both tracts, and also by prescription. There was a second cause of action for damages, but the trial court specifically reserved this, and no trial ever was had upon it. After a hearing a temporary injunction was allowed January 26, 1938. Defendant filed an answer containing a general denial and an allegation that plaintiff's petition did not state facts sufficient to constitute a cause of action. After a trial on the pleadings, and on February 24, 1939, the trial court overruled defendant's demurrer to plaintiff's evidence, made findings of fact and conclusions of law and rendered judgment for plaintiff. In due time defendant filed a motion for a new trial, also a motion to set aside certain of the findings of fact and conclusions of law. On May 12, 1939, both motions were overruled, except a clause, not now material, was stricken from one of the findings of fact. At the same term of court, and on June 30, 1939, the court, desiring to give further consideration to the motion for a new trial, set aside the decision and judgment of May 12, 1939, overruling that motion.

Defendant's motion for a new trial, having been considered further, was overruled May 16, 1941. On July 14, 1941, defendant served and filed his notice of appeal from the judgment, order and decision of the court of May 16, 1941, overruling the motion for a new trial "and from all adverse rulings, findings, conclusions and the judgment of the said district court against said defendant in the above entitled cause."

In this court appellant does not assign error upon the court's ruling of May 16, 1941, overruling his motion for a new trial, and nowhere in his brief or oral argument does he complain of that ruling. Apparently he is satisfied with it; in any event, as a matter of law, he is deemed to have waived any objection he ever had to that ruling. No question respecting that ruling is before this court for review. Gas Co. v. Dooley, 73 Kan. 758, 84 P. 719; Bennett v. National Supply Co., 80 Kan. 437, 102 P. 511; Chicago Lumber & Coal Co. v. Smith, 84 Kan. 190, 114 P. 372, and cases cited therein. Since the overruling of the motion for a new trial is not assigned as error, errors arising on the trial of the cause will not be reviewed. Brewer Motor Co. v. Harris, 147 Kan. 197, 75 P.2d 287.

The errors assigned are (1) in overruling defendant's demurrer to evidence on hearing for temporary injunction; (2) in granting a temporary injunction; (3) in overruling defendant's demurrer to evidence on hearing for permanent injunction; (4) in granting a permanent injunction; (5) in overruling defendant's motion to set aside findings of fact and conclusions of law under the first cause of action; (6) in overruling defendant's motion to set aside findings of fact and conclusions of law under the second cause of action; (7) in rendering judgment on plaintiff's second cause of action.

The fifth assignment refers to findings and conclusions that plaintiff had acquired the right of way by implication from the common grantor, and the sixth and seventh to findings and conclusions and the judgment that plaintiff acquired the right of way by prescription. They do not refer to the second cause of action as set out in the petition, wherein plaintiff seeks to recover damages, since trial on that issue was reserved. All the assignments of error are respecting the judgment on the merits rendered by the court on February 24 1939, and other rulings made at that...