Hoffman v. Hoffman, 35776.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtPARKER, Justice.
Citation135 P.2d 887,156 Kan. 647
PartiesHOFFMAN v. HOFFMAN.
Docket Number35776.
Decision Date10 April 1943

135 P.2d 887

156 Kan. 647

HOFFMAN
v.
HOFFMAN.

No. 35776.

Supreme Court of Kansas

April 10, 1943


Rehearing Denied May 12, 1943.

Syllabus by the Court.

Defendant's demand of plaintiff for permission to inspect a letter allegedly written by defendant was made under statute relating to inspection and copy of books and papers, and not under statute relating to obtention of copies of writings to be offered in evidence, and hence where plaintiff failed to comply with the demand and defendant did not apply for an order requiring plaintiff to do so, defendant could not complain of admission of a photostatic copy of the letter. Gen.St.1935, 60-2850, 60-2851.

Where defendant under statute relating to obtention of copies of writings to be offered in evidence demanded of plaintiff permission to inspect a letter allegedly written by defendant, plaintiff was not required to deliver a copy of the letter to defendant to authorize admission of a photostatic copy of the letter, where defendant had notice that the photostatic copy was a public record equally accessible to both parties and that plaintiff did not have control of the original letter. Gen.St.1935, 60-2851.

A sufficient foundation was laid for admission of a photostatic copy of a letter allegedly written by defendant where witness having exclusive possession of the original letter appeared in response to a subpoena duces tecum and testified that she had placed the original letter among her personal papers, that she had made diligent search for it and was unable to find it.

A photostatic copy of an original instrument when otherwise properly identified is admissible when it appears that the original instrument has been misplaced or lost and cannot be found.

Where there was no direct evidence or intimation that letter allegedly written by defendant was obtained by connivance, fraud, coercion or other improper means, and defendant's position was that she did not write the letter, letter was an "admission" of defendant within statute authorizing admission of admissions in divorce actions. Gen.St.1935, 60-1508.

It is the function of the trial court and not the court of appeal to pass upon the weight and sufficiency of evidence in a divorce proceeding, and where the trial court's findings as to misconduct on the part of one of the parties is supported by substantial competent evidence, they and the subsequent judgment will not be disturbed.

Where wife had written a vile and indecent letter to another man which letter was intercepted by such other man's wife and was later published causing husband much distress and humiliation, evidence sustained judgment awarding husband a divorce from wife on grounds of "extreme cruelty" and "gross neglect of duty".

During the term at which judgment is rendered, the district court may vacate its orders or judgments, and when such order is made the previously existing status is restored.

Where motion for new trial is filed during the term, jurisdiction of the trial court is not lost by the fact that such motion is not determined until a subsequent term.

Although a trial should be completed at the term at which it is commenced, where trial is to the court without a jury, and all the testimony is offered, the arguments concluded, and the case submitted for judgment, the court may take the case under advisement to the next succeeding term and render a valid judgment at that term.

A judgment rendered at a subsequent term, when the district court has retained jurisdiction to dispose of issues not determined by a former judgment is valid.

After lapse of the term at which a final judgment is rendered, district court has no power to modify or vacate the judgment, except in accordance with the express provisions of the Code of Civil Procedure. Gen.St.1935, 60-3007, subd. 1.

Motions to modify or to vacate a judgment are addressed to the sound discretion of the trial court and when not acted upon during the term at which the judgment was rendered are deemed to be overruled, and their pendency does not confer jurisdiction upon the trial court to modify or to vacate judgment at a subsequent term. Gen.St. 1935, 60-3007, subd. 1.

Where trial court handed down a memorandum opinion determining issues of divorce action generally in favor of plaintiff and defendant filed motion for new trial and to vacate the judgment and to set aside specified findings and plaintiff filed motion to vacate specified findings and for new trial as to such matters only, and a journal entry of judgment was filed on the last day of the term, incorporating the memorandum opinion findings, and at a subsequent term trial court attempted to modify the judgment, such attempted action was void and the original judgment was valid. Gen.St.1935, 20-1005, 60-3007, subd. 1.

Where trial court handed down a memorandum opinion determining issues generally in favor of plaintiff in divorce action, and defendant filed motion for new trial and on the last day of the term a journal entry of judgment was filed incorporating the memorandum opinion findings, and defendant's notice of appeal appealed from the order denying defendant's motion for new trial after rendition of judgment, defendant's motion was properly before the Supreme Court.

Where trial court granted divorce to husband for wife's fault, trial court was not authorized to require husband to pay alimony to wife.

A divorce judgment failing to make a fair and just division of the property rights of the parties should be reversed. Gen.St.1935, 60-1511.

Where trial court granted divorce to husband and took improperly made alimony allowance to wife into account in determining the property rights of the parties, judgment was affirmed so far as it granted husband a divorce and judgment for alimony and division of property and property rights was reversed and cause was remanded with instructions to hear testimony upon issue of a fair and equitable division of the parties' property and property rights, where it would serve no useful purpose to reverse the case for new trial in its entirety. Gen.St.1935, 60-1511.

1. A demand for an inspection of an original instrument, or in the alternative for a copy was made under the provisions of G.S.1935, 60-2850. When such a demand is not complied with and the party making it fails to procure an order of the trial court requiring an inspection and copy of the original instrument it is within the sound discretion of the trial court to admit the original or a copy thereof, a proper foundation having been laid for the admission of secondary evidence.

2. Where a demand is claimed to have been made, under G.S.1935, 60-2851, for a copy of an instrument on which the action was primarily founded, and it appears at the trial that the demanding party was advised the adverse party did not have the original or a copy and that a photostatic copy of such instrument was a part of the record of a former divorce proceeding on file in the office of the clerk of the district court of the county wherein the instant action was pending, the demanding party cannot predicate a ground for excluding the admission of such photostatic copy in evidence on the failure or refusal to furnish the copy, such instrument being a part and portion of a public record and equally accessible to all parties to the action.

3. A sufficient foundation was laid for the admission of secondary evidence when the individual having exclusive possession of an original instrument appeared as a witness in response to a subpoena duces tecum and testified she placed such original instrument among her personal papers, that she had made diligent search for it and was unable to find it and produce it in court.

4. A photostatic copy of an original instrument when otherwise properly identified is admissible in evidence when it appears the original instrument has been misplaced or lost and cannot be found.

5. It is the function of the trial court, not the court of appeal, to pass upon the weight and sufficiency of the evidence in a divorce proceeding and where the trial court's findings as to misconduct on the part of one of the parties is supported by substantial competent evidence, they and the subsequent judgment will not be disturbed.

6. During the term at which judgment is rendered the district court may vacate its orders or judgments and when such order is made the previous existing status is restored and the situation is the same as though no order or judgment had ever been made.

7. Where a motion for new trial is filed during the term the jurisdiction of the court is not lost by the fact such motion was not considered and determined until a subsequent term.

8. A judgment rendered at a subsequent term, where the district court had retained jurisdiction for the purpose of disposing of issues not determined by a former judgment is not invalid.

9. After the lapse of the term at which a final judgment was rendered the district court had no power to modify or vacate the judgment, except in accordance with the express provisions of the code of civil procedure.

10. Motions to modify or vacate a judgment are addressed to the sound discretion of the trial court and when not acted upon during the term at which the judgment was rendered are deemed to be overruled and their pendency does not serve to confer jurisdiction to modify or vacate the judgment at a subsequent term.

11. The record in a divorce action is examined and it is held: (1) There was substantial competent evidence to support the trial court's finding the defendant was guilty of extreme cruelty. (2) The trial court was without statutory authority to render a judgment for alimony in favor of the wife, having granted the divorce to the husband. (3) In determining property and property rights of the parties the court failed to make the fair and just division contemplated by G.S.1935, 60-1511.

Appeal from...

To continue reading

Request your trial
15 practice notes
  • Taylor v. State, No. 29102
    • United States
    • Indiana Supreme Court of Indiana
    • 15 Junio 1954
    ...v. New Amsterdam Casualty Co., 1939, 226 Iowa 1186, 286 N.W. 417; Tarpenning v. Cannon, 1882, 28 Kan. 665, 667; Hoffman v. Hoffman, 1943, 156 Kan. 647, 135 P.2d 887, 892; Ditch v. Trustees of Shurtleff College, 1881, 8 Ill.App. Applying the rule of expressio unius exclusio alterius to Rule ......
  • Smith v. Smith, No. 41714
    • United States
    • United States State Supreme Court of Kansas
    • 11 Junio 1960
    ...is not only binding upon the parties but upon the trial court as well (Riley v. Riederer, 144 Kan. 422, 61 P.2d 106; Hoffman v. Hoffman, 156 Kan. 647, 135 P.2d 887; and Hinshaw v. Hinshaw, 166 Kan. 481, 203 P.2d 201); and (4) that installments for the payment of alimony, when due and unpaid......
  • Gates v. Gates, 36332.
    • United States
    • United States State Supreme Court of Kansas
    • 10 Noviembre 1945
    ...were present in person and were represented by counsel, was valid and binding.' (Syl. 3.) To the same effect is Hoffman v. Hoffman, 156 Kan. 647, 135 P.2d 887, 889, where the general rule is stated thus: 'A judgment rendered at a subsequent term, where the district court had retained jurisd......
  • City of Wichita v. Krauss, No. 42470
    • United States
    • United States State Supreme Court of Kansas
    • 26 Enero 1963
    ...and its pendency does not confer jurisdiction on the court to modify or vacate the judgment at a subsequent term. (Hoffman v. Hoffman, 156 Kan. 647, 135 P.2d 887; Smith v. Kansas Transport Co., 172 Kan. 26, 238 P.2d 553; Buchanan v. Lambdin, 176 Kan. 62, 269 P.2d 443; Voth v. Thompson, 178 ......
  • Request a trial to view additional results
15 cases
  • Taylor v. State, No. 29102
    • United States
    • Indiana Supreme Court of Indiana
    • 15 Junio 1954
    ...v. New Amsterdam Casualty Co., 1939, 226 Iowa 1186, 286 N.W. 417; Tarpenning v. Cannon, 1882, 28 Kan. 665, 667; Hoffman v. Hoffman, 1943, 156 Kan. 647, 135 P.2d 887, 892; Ditch v. Trustees of Shurtleff College, 1881, 8 Ill.App. Applying the rule of expressio unius exclusio alterius to Rule ......
  • Smith v. Smith, No. 41714
    • United States
    • United States State Supreme Court of Kansas
    • 11 Junio 1960
    ...is not only binding upon the parties but upon the trial court as well (Riley v. Riederer, 144 Kan. 422, 61 P.2d 106; Hoffman v. Hoffman, 156 Kan. 647, 135 P.2d 887; and Hinshaw v. Hinshaw, 166 Kan. 481, 203 P.2d 201); and (4) that installments for the payment of alimony, when due and unpaid......
  • Gates v. Gates, 36332.
    • United States
    • United States State Supreme Court of Kansas
    • 10 Noviembre 1945
    ...were present in person and were represented by counsel, was valid and binding.' (Syl. 3.) To the same effect is Hoffman v. Hoffman, 156 Kan. 647, 135 P.2d 887, 889, where the general rule is stated thus: 'A judgment rendered at a subsequent term, where the district court had retained jurisd......
  • City of Wichita v. Krauss, No. 42470
    • United States
    • United States State Supreme Court of Kansas
    • 26 Enero 1963
    ...and its pendency does not confer jurisdiction on the court to modify or vacate the judgment at a subsequent term. (Hoffman v. Hoffman, 156 Kan. 647, 135 P.2d 887; Smith v. Kansas Transport Co., 172 Kan. 26, 238 P.2d 553; Buchanan v. Lambdin, 176 Kan. 62, 269 P.2d 443; Voth v. Thompson, 178 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT