Landscape Development Co. v. Kansas City Power & Light Co., 44492

• Decision Date: 11 June 1966
• Docket Number: No. 44492,44492
• Citation: 415 P.2d 398,197 Kan. 126
• Parties: LANDSCAPE DEVELOPMENT COMPANY, Inc., Appellee, v. KANSAS CITY POWER & LIGHT COMPANY, Appellant.
• Court: Kansas Supreme Court

Page 398

415 P.2d 398

197 Kan. 126

LANDSCAPE DEVELOPMENT COMPANY, Inc., Appellee, v. KANSAS CITY POWER & LIGHT COMPANY, Appellant.

No. 44492.

Supreme Court of Kansas.

June 11, 1966.

Syllabus by the Court

1. Although an order granting a new trial is normally not appealable as a final order, an exception to this rule exists where the order is challenged on jurisdictional grounds.

2. Where a motion for new trial has been timely filed, a trial court does not lack jurisdiction to set the verdict aside and grant a new trial more than ten days after entry of judgment, for reasons not set forth in the motion, provided the grounds on which it acts are ones for which it might have granted a new trial on a party's motion.

3. The grounds on which a new trial may be granted to all or any of the parties to an action are spelled out in K.S.A. 60-259(a), and such statutory grounds are exclusive.

4. In ordering a new trial on its own initiative, a trial court must predicate its action on one or more of the statutory grounds for which it could have ordered a new trial on the motion of a party.

5. When a new trial is granted for any reason not asserted in a motion for new trial, the trial court must state the grounds for its action specifically; not in the general language of the statute.

H. Thomas Payne, Olathe, and Lowell L. Smithson, Kansas City, Mo., argued the cause, and David Q. Reed, Kansas City, Mo., was with them on the briefs, for appellant.

James H. Bradley, Olathe, argued the cause and was on the brief, for appellee.

FONTRON, Justice:

This action is an appeal by a landowner from an appraisers' award in a condemnation proceeding. A jury returned a verdict of $14,000.00 for the plaintiff landowner. Judgment was entered on March 16, 1965, pursuant to the provisions of K.S.A. 60-258.

The plaintiff, being dissatisfied with the verdict, filed a motion for a new trial. This motion was sustained, and a new trial ordered, on April 15, 1965. The reason given by the court in ordering a new trial was 'the fact that the Court can not approve the verdict of the jury, period.'

The defendant (condemnor) has appealed from the order granting a new trial, designating as points, lack of jurisdiction and abuse of discretion.

We are confronted at the outset with the contention of the plaintiff (appellee) that the order granting a new trial is not a final order and, hence, is not appealable within the purview of K.S.A. 60-2102. This statute provides in pertinent part:

'(a) As of right. The appellate jurisdiction of the supreme court may be invoked by appeal as a matter of right from:

'(4) A final decision in any action, except in an action to recover money, the amount in controversy must be in excess of five hundred dollars ($500.00). In any appeal or cross-appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable.'

In Connell v. State Highway Commission, 192 Kan. 371, 388 P.2d 637, this court had occasion to consider what constitutes a final order, as contemplated by the statute, and we there said:

'No attempt was made (in the statute) to define the word 'final' and confuse the issue. The word is to be given its ordinary meaning. A judgment or an order is to be considered as final if all the issues in the case are determined, not just part of the issues. * * *' (p. 374, 388 P.2d p. 641.)

We agree that normally an order granting a new trial does not possess the finality required of an appealable order within the meaning of the statute. This view has respectable support. Judge Gard, in his work, Kansas Code of Civil Procedure, annotated, says in the commentary on section 60-2102(a):

'This subsection eliminates appeal to the supreme court as a matter of right from (1) an order which grants or refuses a new trial * * *.' (p. 765.)

However, while it is the general rule that an order granting a new trial is interlocutory and, hence, not subject to appeal as a matter of right, federal courts have long recognized an exception to the rule in those instances where the order is challenged on jurisdictional grounds. (Board of Sup'rs of Rockland County v. Knickerbocker Ice Co., 2 Cir. (1935), 80 F.2d 248; Untersinger v. United States, 2 Cir. (1950), 181 F.2d 953.)

This exception is acknowledged in 3 Barron and Holtzoff, Federal Practice and Procedure, § 1302.1, p. 346, wherein the authors state:

'An order granting a new trial is usually not appealable, since such an order is purely interlocutory and is not such a final judgment as the statute makes appealable. There is a limited exception to this proposition in cases where the trial court lacked power to grant the new trial, as because the motion for a new trial was not made within the time prescribed by Rule 59. * * *' (Emphasis supplied.)

Typical of the cases pronouncing this principle is Chicago and North Western Railway Company v. Britten, 8 Cir. (1962), 301 F.2d 400, where the court stated:

'However, as this court said in the recent case of Tsai v. Rosenthal, 8 Cir., 1961, 297 F.2d 614, 616:

"Where the jurisdiction of the court to vacate judgment and grant a new trial is challenged, an appeal will lie to review the power or jurisdiction of the court to make such order. Phillips v. Negley, 117 U.S. 665, 6 S.Ct. 901, 29 L.Ed. 1013; Cooper v. Midwest Feed Products Co., supra (8 Cir., 1959, 271 F.2d 177); Jackson v. Wilson Trucking Corp., 100 U.S.App.D.C. 106, 243 F.2d 212; Kanatser v. Chrysler Corp., 10 Cir., 199 F.2d 610; City of Manning v. German Ins. Co., 8 Cir., 107 F. 52." (301 F.2d pp. 401, 402.)

In City of Manning v. German Ins. Co., cited in the above quotation, the court discussed the rationale of the rule in this wise:

'* * * An order granting or refusing a new trial, which the court has the jurisdiction or power to make, is discretionary, and cannot be reviewed by writ of error or appeal in the federal courts. (citing cases) But the question whether or not the court had the jurisdiction or power to make an order granting or refusing a new trial and avoiding a former judgment is always reviewable in the federal courts by a writ of error or an appeal challenging the order, because it goes to the effect and finality of the judgment itself. Phillips v. Negley, 117 U.S. 665, 671, 675, 678, 6 Sup.Ct. 901, 29 L.Ed. 1013.' (107 F. p. 54.)

See also Demeretz v. Daniels Motor Freight, Inc., 3 Cir. (1962), 307 F.2d 469, and Gilliland v. Lyons, 9 Cir. (1960), 278 F.2d 56.

The federal statute governing appeals, 28 U.S.C.A. § 1291, provides in material part that courts of appeal shall have jurisdiction from all final decisions of federal district courts except where a direct review may be had in the Supreme Court. Since the statute is similar to ours, insofar as it provides for appeals from final decisions, we believe the federal decisions construing it are entitled to persuasive weight.

For reasons hereafter discussed, the defendant directs a substantial challenge to the jurisdiction of the trial court to grant a new trial. That challenge, which appears to be made in good faith, brings the appeal within the purview of the exception we have noted. Accordingly, we consider the appeal is properly before us.

Our conclusion in this regard is not intended to be in derogation of what we have said in Oertel v. Phillips, 197 Kan. 113, 415 P.2d 223, this day decided. In that opinion, we approved the general rule that an order granting a new trial is usually not appealable. We only point out, here, that an exception to that general rule exists when the jurisdiction of the trial court to grant a new trial is challenged. In such an exceptional circumstance, the challenged order is subject to appeal.

We proceed to consider the jurisdictional question raised by the defendant. The basis of its challenge goes like this: 1. The new trial was granted because the court could not approve the verdict. 2. This ground was not contained in plaintiff's motion for a new trial. 3. Hence, the court's action in granting the new trial was on its own initiative. 4 K.S.A. 60-259(e) limits the time within which a new trial may be granted on the court's own initiative to ten (10) days after entry of judgment. 5. The order granting a new trial on the court's initiative, being made more than ten (10) days after judgment was entered, is void because the court lacked jurisdiction to make it. K.S.A 60-259(e) provides as follows:

'Not later than ten (10) days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds therefor.'

This statute is identical to Federal Rule 59(d), after which it was fashioned.

Federal circuit courts have interpreted this rule as meaning that where a verdict is set aside and a new trial is granted on a ground not contained in a motion for new trial, the trial court has acted 'on its own initiative' and, consequently, such action cannot be taken later than ten (10) days after entry of judgment. (Bailey v. Slentz, 10 Cir. (1951), 189 F.2d 406; Marshall's U. S. Auto Supply, Inc. v. Cashman, 10 Cir. (1940), 111 F.2d 140, cert. den. 311 U.S. 667, 61 S.Ct. 26, 85 L.Ed. 428; Freid v. McGrath, 76 U.S.App.D.C. 388, 133 F.2d 350; Chicago and North Western Railway Company v. Britten, supra; Gilliland v. Lyons, supra; Jackson v. Wilson Trucking Corp., 100 U.S.App.D.C. 106, 243 F.2d 212, supra; National Farmers Union Auto. & Cas. Co. v. Wood, 10 Cir. (1953), 207 F.2d 659.)

The rule is given expression in Kanatser v. Chrysler Corp., 10 Cir. (1952), 199 F.2d 610, cert. den. 344 U.S. 921, 73 S.Ct. 388, 97 L.Ed. 710, supra, in these words:

'* * * But, it is well settled in this and other jurisdictions that if the court purports to grant a motion for new trial on any ground not asserted therein, it acts upon its own initiative and hence must do so within the ten day limitation prescribed by Rule 59(d), s...