Hinkle v. Ward
| Decision Date | 03 July 1931 |
| Docket Number | 30021. |
| Citation | 1 P.2d 83,133 Kan. 516 |
| Parties | HINKLE v. WARD. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Plaintiff desiring to appeal where sole defendant dies after judgment for defendant, there being no revivor, may do so by serving notice of appeal on deceased defendant's former attorney of record (Rev. St. 1923, 60-- 3306, 60--3309).
Where the sole defendant dies after a judgment has been rendered in favor of defendant, and there has been no revivor of the proceeding or judgment, the plaintiff desiring to take an appeal to the Supreme Court may do so by serving a notice of appeal upon the former attorney of record of the deceased defendant.
Supreme Court must dismiss appeal, where, before taking thereof, one of parties died, and no proper revivor was obtained (Rev. St 1923, 60--3306, 60--3309).
Where an appeal from a judgment has been taken to the Supreme Court, and one of the parties had died prior to the taking of the appeal, and no proper revivor of the judgment and proceeding had been obtained, the Supreme Court can render no effective judgment in the appeal, and has no alternative other than a dismissal of the appeal.
Additional Syllabus by Editorial Staff.
In action to rescind sale of realty, service of notice of appeal on administrator of defendant, who died after judgment in his favor, held ineffective to revive action to give appellate court jurisdiction (Rev. St. 1923, 60--3306, 60--3309).
Appeal from District Court, Finney County; H. E. Walter, Judge.
Action by J. D. Hinkle against George W. Ward, who having died, the action was revived in the name of A. M. Fleming, his administrator with the will annexed. Judgment for defendant and plaintiff appeals.
Proceeding dismissed.
H. O. Trinkle, of Garden City, for appellant.
C. E. Vance, Clifford R. Hope, and A. M. Fleming, all of Garden City, for appellee.
J. D. Hinkle brought this action to rescind a contract made in his purchase of real property from the defendant, George W. Ward. At the close of his evidence, the court sustained a demurrer thereto, and gave judgment for the defendant. Plaintiff appeals.
Ward, it appears, owned the property contracted for, which consisted of two lots in the town of Pierceville, on which there was a building designed to be used in part as a garage, and in part as a residence. After an examination of the property by the plaintiff, an agreement was arrived at and a purchase made for the price of $2,000. The terms were $200 in cash, a used automobile of the estimated value of $400 and a note for $1,400 secured by a mortgage on land of plaintiff in Finney county. After the agreement was made, a deed was executed by Ward for the property, whereupon the cash payment of $200 to Ward was made, the automobile delivered, and the note and mortgage executed and delivered. The son of plaintiff, for whose use the property was purchased, went into and remained in possession about a week. There was some dispute as to whether an abstract of title of the property was to be furnished. When plaintiff later asked defendant for an abstract, the defendant in reply asked plaintiff for an abstract of the mortgaged land, and this was refused. The defendant did not furnish plaintiff an abstract when requested, but did shortly after this action was brought. In addition to the facts stated, plaintiff claimed and gave testimony to the effect that he learned, after his purchase, of a previous contract of sale by defendant to Reitberg, who had entered into possession of the property in February, 1929, and had therein a stock of automobile equipment, and in the following September, Reitberg became a bankrupt when the stock he had on hand was turned over to a trustee in bankruptcy. At the time of the sale in question, Ward told the plaintiff that the stock was in bankruptcy, but did not tell him that the building or lots were involved in bankruptcy. It appears that there had been no transfer of title to Reitberg of the property.
Plaintiff claims that when he purchased the property, he was told by Ward that the title was clear, and that immediate possession could be given, and that when he learned that a contract of sale had been previously made and of the bankruptcy proceeding, he concluded to and did rescind the transfer. He brought this action at once, but it appears that he has not tendered the deed back to the defendant, and that the latter still retains the money paid, as well as the automobile and the notes and mortgage previously given.
Plaintiff insists that the judgment denying him the remedy of rescission should be reversed. The defendant, on the other hand, raises the question, first, that the plaintiff has no appeal here, and second, that there has been no valid revivor of the judgment. Was an appeal taken within the time limit? The decision sustaining the demurrer to plaintiff's evidence was rendered May 26, 1930. A motion for a new trial was filed on May 28, 1930, which was overruled on September 3, 1930. Ward died on October 8th, and on October 31, 1930 A. M. Fleming was appointed administrator of his estate. On November 26, 1930, the last day of the six-month period for the taking of an appeal, a notice of appeal was served upon A. M. Fleming, who had been the attorney of record for Ward in the action, and on December 8th an attempt was made to obtain a revivor of the proceedings. Was the service on Fleming, who had been the attorney of record of the defendant, sufficient to secure a valid appeal? Under the statute, an appeal may be perfected within six months from the time the judgment or order appealed from is rendered. Rev. St. 60--3309. It may be accomplished by a notice filed with the clerk of the trial court, and personal service of notice on adverse parties or their attorneys of record. Rev. St. 60--3306. No notice was served upon the defendant, as he had died several weeks prior to that time. The only service made was upon Fleming, who accepted service of the notice, and we have the question, Did the intervention of the death of defendant deprive the attorney of record of the right to accept service of the notice, and defeat the appeal? Ordinarily, the death of a client ends the general powers of his attorney, and there is a general rule that his powers terminate with the entering of judgment. It is competent for the Legislature to determine whether any appeal shall be allowed, and to impose such conditions and restrictions in the granting of an appeal as it may see fit. It was manifestly the purpose of the Legislature to promote appeals by making the way easy and the path straight. It would be difficult to provide a more simple method than has been prescribed by the...
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...370 Ill. 92, 17 N.E.2d 963. (2) Relators' argument is not supported by the statutes or by any decision of a Missouri court. Hinkle v. Ward, 133 Kan. 516, 1 P.2d 83; Cole v. Parker-Washington Co., 276 Mo. 220; Bostick v. McIntosh, 278 Mo. 395, 213 S.W. 456; Rutherford v. Williams' Legal Repr......
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State ex rel. Fidelity Natl. Bank & Trust v. Buzard, 38207.
...Legal Representatives, 62 Mo. 252; State ex rel. Porter v. Falkenhainer, 321 Mo. 613; DeHatre v. Ruenpohl, 341 Mo. 749; Hinkle v. Ward, 133 Kan. 516, 1 Pac. (2d) 83. (3) Section 1042 definitely limits the power of the court to three terms. State ex rel. v. Yates, 231 Mo. 276; Wood v. Carpen......
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...In the face of a record, such as has been heretofore set forth, particularly since 60-3306 provides, and our decisions (Hinkle v. Ward, 133 Kan. 516, 518, 519, 1 P.2d 83) hold, that an appeal may be perfected by service upon attorneys of record for adverse parties, much could be said with r......
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