Jeffers v. Jeffers
| Decision Date | 03 July 1957 |
| Docket Number | No. 40491,40491 |
| Citation | 313 P.2d 233,181 Kan. 515 |
| Parties | Violet JEFFERS, Appellee, v. Dail L. JEFFERS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Following Morgan v. Morgan, 146 Kan. 880, 73 P.2d 1105, in an appeal from a judgment granting to plaintiff separate maintenance and alimony, custody of minor children and a monthly allowance for their support, the record examined and held: (1) There being no motion for a new trial filed in the district court, trial errors are not open to appellate review; (2) the objection that the judgment for alimony was excessive in amount will not be considered on appeal where it was not raised by a motion for a new trial; and (3) the pleadings and findings of the district court support the judgment entered in plaintiff's behalf.
2. Following Kraus v. Kraus, 171 Kan. 254, 232 P.2d 233, G.S.1949, 60-1516 provides that a wife may obtain alimony from the husband without a divorce, in an action brought for that purpose in the district court for any of the causes for which a divorce may be granted. Actions for separate maintenance and for divorce are two separate and distinct actions, and the question of priority in time of filing and the issuance of summons in each is immaterial.
3. One of the first and continuing duties of a court is to determine whether it has jurisdiction of the subject matter of the action.
Kenneth H. Foust, Iola, argued the cause, and John O. Foust, Iola, was with him on the briefs, for appellant.
John C. McCall, Chanute, was on the briefs, for appellee.
This is an appeal from a judgment rendered by the district court of Neosho County granting plaintiff appellee separate maintenance and alimony in the sum of $27,000 payable at $100 per month; possession of the parties' household goods; custody of their two minor children, with visitation rights to the defendant appellant; child support money in the sum of $50 per month during the minority of the minor children or until they become self-supporting; and, fees for plaintiff's attorney. Dissatisfied with that judgment, the defendant brings the case here for review.
On March 17, 1956, plaintiff filed the instant action in the district court of Neosho County but no praecipe for summons was filed and no attempt was made to procure service upon the defendant until May 2, 1956, when he was personally served with summons in Iola, Allen County. On April 16, 1956, and prior to the issuance of summons in plaintiff's separate maintenance action, defendant commenced an action in the district court of Allen County for divorce from the plaintiff, for custody of their minor children, and for a division of the property of the parties. Personal service of summons was had upon the plaintiff the same day in Chanute, Neosho County; however, no order was made for temporary alimony, or support or suit money for the wife, or for the custody, control and support of the minor children during the pendency of that action. When the separate maintenance action was tried in the district court of Neosho County July 3, 1956, the divorce action was still pending and undetermined in the district court of Allen County.
On the day the separate maintenance action was tried the defendant filed an answer containing a general denial, an admission of the marriage of the parties and the birth of the children as alleged in the petition, and in the third paragraph thereof he alleged in substance that at the time plaintiff commenced her action in the district court of Neosho County there was pending in the district court of Allen County an action filed by the defendant against the plaintiff for a divorce, for custody of the minor children, and for a settlement of the property rights of the parties; and further, that the district court of Allen County had jurisdiction of the parties and of the subject matter and had prior jurisdiction at the time plaintiff's action for separate maintenance was filed. At the commencement of the trial and upon the oral motion of the plaintiff, the district court ordered the third paragraph of the defendant's answer stricken.
The defendant has appealed from the judgment of July 3, 1956, granting plaintiff separate maintenance and alimony in the sum of $27,000; from the order striking the third paragraph from his answer, and from all other orders, decisions and judgments. However, defendant's sole specification of error is 'The amount of alimony allowed by the Court is excessive.' In considering this specification we note first that the defendant failed to file a motion for a new trial, and, consequently, we have difficulty in ascertaining any point subject to appellate review.
Although the defendant appealed from the order of the district court striking the third paragraph from his answer this asserted erroneous ruling is not specified as error, and, consequently, is not subject to appellate review (Quick v. Purcell, 179 Kan. 319, 295 P.2d 626; Nicholas v. Latham, 179 Kan. 348, 295 P.2d 631; Rice v. Hovey, 180 Kan. 38, 299 P.2d 45). Error is never presumed (Quivira, Inc., v. Quivira Co., Inc., 173 Kan. 339, 245 P.2d 972; Elliott v. P. H. Albright Farm Loan Co., 129 Kan. 280, 282 P. 749), and it is incumbent upon the party appealing to specify the error alleged to have been committed (Fakes v. Osborne, 165 Kan. 176, 193 P.2d 218; Quick v. Purcell, supra).
Moreover, it has been decided many times that in the absence of a motion for a new trial, trial errors are not open to appellate review. These include rulings of the district court on dilatory pleas, orders setting the cause for trial, denial of additional time to plead, the admission or exclusion of evidence, the sufficiency of evidence to support the judgment, erroneous instructions to the jury, misconduct of court or counsel, and general miscellaneous irregularities of procedure and practice for which new trials may be granted on timely motion of a defeated litigant (Morgan v. Morgan, 146 Kan. 880, 73 P.2d 1105). In that case it was held:
A few of our many cases which support this rule are: Holton v. Holton, 172 Kan. 681, 243 P.2d 222; Billups v. American Surety Co., 173 Kan. 646, 251 P.2d 237; Wingert v. Mouse, 174 Kan. 239, 255 P.2d 1007; State ex rel. Fatzer v. Miller, 176 Kan. 175, 268 P.2d 964; Brewer v. Hearne Motor Freight Lines, Inc., 179 Kan. 732, 297 P.2d 1108; and, McIntyre v. Dickinson, 180 Kan. 710, 307 P.2d 1068.
In Anderson v. Connecticut Mut. Life Insurance Co., 55 Kan. 81, 39 P. 1038, it was held:
'The objection that the judgment is excessive in amount will not be considered on appeal, where it was not raised by motion for a new trial.' (Syl. p1.)
That case was cited with approval in Robinson v. Davis, 162 Kan. 44, 174 P.2d 111, wherein it was said:
* * *' 162 Kan. loc. cit. 46, 174 P.2d loc. cit. 113.
It is obvious by the decisions of this court that in the absence of a motion for a new trial, the scope of appellate review is limited to the question whether the judgment is supported by the pleadings and findings (Phelps & Bigelow Windmill Co. v. Buchanan, 46 Kan. 314, 26 P. 708; Benson v. Rosebaugh, 128 Kan. 357, 278 P. 41; Morgan v. Morgan, supra).
With respect to the pleadings, plaintiff's petition clearly alleged her residence in Neosho County, her marriage to the defendant, the birth of...
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