Lambeth v. Bogart
| Decision Date | 09 May 1942 |
| Docket Number | 35502. |
| Citation | 125 P.2d 377,155 Kan. 413 |
| Parties | LAMBETH v. BOGART et al. |
| Court | Kansas Supreme Court |
Rehearing Denied June 13, 1942.
Syllabus by the Court.
The Supreme Court Rule requiring appellant's abstract to include specification of errors complained of, separately set forth and numbered, is designed to promote definiteness fairness and orderly procedure on review. Supreme Court Rule No. 5.
The purpose of Supreme Court Rule requiring appellant's abstract to include a specification of errors complained of separately set forth and numbered, is to advise both appellee and the Supreme Court concerning the particular error or errors which appellant claims trial court committed in rendering its judgment. Supreme Court Rule No. 5.
Notice that appellant appealed from judgment, contained in appellant's abstract, did not constitute a "specification of errors" required by Supreme Court Rule, and the appeal was dismissed for noncompliance with rule. Supreme Court Rule No. 5.
An assignment of error which merely alleges that trial court erred in rendering judgment did not present any specific question for review. Supreme Court Rule No. 5.
An attempted compliance in appellant's reply brief with Supreme Court Rule requiring appellant's abstract to include specification of errors complained of, separately set forth and numbered, did not give appellee notice of alleged errors to which she was entitled and did not preclude dismissal of appeal for failure to comply with the rule. Supreme Court Rule No. 5.
1. Rule No. 5 of the supreme court provides: "The appellant's abstract shall include a specification of the errors complained of, separately set forth and numbered." 147 Kan. XIII.
2. The record in an action to foreclose a mechanic's lien on an oil and gas lease examined and held: (a) a notice of appeal from a judgment does not constitute a specification of errors; (b) no other specification of errors was made as required by the rule; (c) the belated attempt of appellant to set forth a specification of errors in a reply brief did not meet the intent and purpose of the rule.
Appeal from District Court, Miami County; Garfield A. Roberds Judge.
Action by Hal A. Lambeth against Frances W. Bogart and others to foreclose a mechanic's lien on an oil and gas lease. From judgment modifying a prior judgment for the plaintiff, the latter appeals.
Appeal dismissed.
A. A Bryan, of Paola, for appellant.
Leonard O. Thomas, of Kansas City, for appellee.
This action was instituted to foreclose a mechanic's lien on an oil and gas lease. Judgment was for plaintiff and plaintiff appeals from a subsequent judgment which modified the first judgment.
The appeal involves only one of the defendants, Frances W. Bogart, appellee. Personal service was had on her in the foreclosure action. She filed no answer and on July 15, 1941, a default judgment was rendered against her in personam in the sum of $319.88 and the lien was foreclosed. The property was sold at sheriff's sale and the sale was confirmed. During the same term of court and on September 29th, appellee filed a motion to set aside such part of the judgment as constituted a judgment against her in personam. The hearing on that motion was set for Saturday, October 4, 1941. That was the last day of the June term of court within which the foreclosure judgment was rendered. G.S.1935, 20-1010. The hearing was continued by order of court until November 10, 1941, and on that date was again continued by order of court to November 24, 1941. On the latter date the original judgment was modified by setting aside the judgment in personam against appellee. The judgment in rem was declared to be in full force and effect and all subsequent proceedings involving the sale were again confirmed. The appeal is from the order and judgment modifying the original judgment.
A hearing was had on the motion to modify the judgment. It appears appellee obtained her interest in the oil and gas lease by assignment and that all of the claims which constituted liens, except a claim in the sum of $15, had been created prior to the time appellee obtained her interest in the lease. It would further appear there was ample evidence to support a specific finding, if made, that appellee had been given to understand no personal judgment would be...
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