Kelchner v. The City of Kansas City

• Decision Date: 09 March 1912
• Docket Number: 17,504
• Citation: 121 P. 915,86 Kan. 762
• Parties: W. J. KELCHNER, Appellee, v. THE CITY OF KANSAS CITY, KANSAS, Appellant
• Court: Kansas Supreme Court

121 P. 915

86 Kan. 762

W. J. KELCHNER, Appellee, v. THE CITY OF KANSAS CITY, KANSAS, Appellant

No. 17,504

Supreme Court of Kansas

March 9, 1912

Decided January, 1912.

Appeal from Wyandotte district court, division No. 1.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. APPEAL--Informal Undertaking--Amendment. An undertaking on appeal from proceedings to appropriate land for park purposes, running to the park board instead of the city as required by law, was not void but was informal, and it was proper to allow an amended undertaking to be filed after the period for taking an appeal had expired.

2. PRIVATE PROPERTY--Public Use--Damages--Evidence--Rents. On the trial of an appeal taken in proceedings to appropriate private property for public use it is not error to admit evidence of the amount of rents received in good faith within a reasonable limit of time, not including anything fanciful or fictitious.

Richard J. Higgins, for the appellant.

W. M Whitelaw, Nathan Cree, George R. Allen, and Sharp & Sharp, for the appellee.

OPINION

BENSON, J.:

In an appeal to the district court from an award of damages for the appropriation of land for park purposes under the provisions of section 1126 of the General Statutes of 1909, a bond was filed running to the park board instead of the city, the proper obligee. (Gen. Stat. 1909, § 1130; Jus. Civ. Code, § 121.) A motion was filed to dismiss the appeal because an undertaking or bond as required by law had not been filed. This motion was overruled, and the landowner was allowed to file an amended bond running to the city as obligee after the expiration of the ten-day limit for taking an appeal. Complaint is made of this proceeding on the ground that the original bond was a nullity and the court was without jurisdiction.

The bond was manifestly given for the use and protection of the city, and was not void merely because the representative body of the city in control of parks was named as obligee instead of the city. Under the liberal procedure provided by the civil codes the due administration of justice will not be sacrificed to form if the substantial rights of parties are protected. The bond was sufficient to give the court jurisdiction of the appeal, and was properly amended. Decisions of this court in similar cases warrant the action of the district court. (McClelland Bros. v. Allison, 34 Kan. 155, 8 P. 239; Shreves v. Gibson, 76 Kan. 709, 92 P. 584; Ottawa v. Johnson, 73 Kan. 165, 84 P. 749; Goffinet v. Soper, 77 Kan. 555, 95 P. 571.)

Witnesses were permitted to testify to the amount of rents received by the owner from the property taken, and this ruling is alleged to be erroneous. It is true that the market value of the property is the measure of damages for the appropriation, but evidence of market value is not necessarily restricted to direct answers to the particular question, "What is the market value?" Rentals received in good faith necessarily...