Long v. Riggs, 80-51011-A

• Decision Date: 17 October 1980
• Docket Number: No. 80-51011-A,80-51011-A
• Citation: 5 Kan.App.2d 416,617 P.2d 1270
• Parties: Cleo LONG, Appellant, v. James M. RIGGS, Connie A. Riggs, Kenneth Borders and James B. Nutter & Company, a Corporation, Appellees.
• Court: Kansas Court of Appeals

Page 1270

617 P.2d 1270

5 Kan.App.2d 416

Cleo LONG, Appellant, v. James M. RIGGS, Connie A. Riggs, Kenneth Borders and James B. Nutter & Company, a Corporation, Appellees.

No. 80-51011-A.

Court of Appeals of Kansas.

Oct. 17, 1980.

Syllabus by the Court

1. K.S.A. 60-225(a) applies to cases pending on appeal, and a motion for substitution of a party for a deceased litigant must be made within a reasonable time after death is suggested upon the record.

2. Where a plaintiff dies while an appeal taken by him is pending, and his attorney and/or personal representative fails to substitute a party under K.S.A. 60-225(a), the appeal will be dismissed.

Edward V. Byrne, Olathe, for appellant.

P. Stephen Martin, of Bennett, Lytle, Wetzler, Winn & Martin, Prairie Village, for appellees James M. Riggs and Connie A. Riggs.

Before FOTH, C. J., SWINEHART, J., and HARMAN, C. J., Retired, sitting by designation.

SWINEHART, Judge:

This is an appeal from a summary judgment entered in favor of the defendants James M. Riggs and Connie A. Riggs, in an action to foreclose a mechanic's lien.

The issue on appeal is whether the mechanic's lien filed by the plaintiff Cleo Long satisfied the pertinent statute. The trial court had determined that the lien statement was fatally defective because it was not reasonably itemized as required by K.S.A. 60-1102(a).

Summary judgment in favor of the defendants was entered on February 14, 1979, and a notice of appeal was filed on March 12, 1979. The plaintiff died on February 10, 1980, while this case was pending on appeal, and no substitution of party plaintiff has been made since that date. The defendants filed a suggestion of death with this court on July 30, 1980, informing it of the plaintiff's death. Plaintiff's counsel made no response thereto before oral arguments on August 25, 1980.

Although the question of appellate jurisdiction of this case has not been raised by the defendants, we have the duty to do so, and when jurisdiction is lacking the appeal must be dismissed. Smith v. Williams, 3 Kan.App.2d 205, 592 P.2d 129, rev. denied 226 Kan. 792 (1979); Henderson v. Hassur, 1 Kan.App.2d 103, 562 P.2d 108 (1977).

At oral arguments on the appeal, plaintiff's counsel was provided the opportunity to submit a brief to this court informing it why the appeal should not be dismissed due to the failure to substitute a party after plaintiff's death. In his memorandum the plaintiff's attorney contends the requirement for substitution of parties contained in K.S.A. 60-225 is not applicable because it pertains only to cases pending in the district court, and no similar provisions are mandated for the appellate courts. K.S.A. 60-225(a) provides:

"(a) Death of party. (1) Where claim not extinguished. If a party dies and the claim is not thereby extinguished, the court shall on motion order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party or by any party and together with the notice of the hearing, shall be served on the parties as provided in K.S.A. 60-205, and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within a reasonable time after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party."

According to the above analysis, then, since the case was appealed prior to the death of the plaintiff, this court has appellate jurisdiction.

We disagree with the argument advanced by plaintiff's counsel. While K.S.A. 60-201 does provide that the scope of Article 2 of the Kansas Rules of Civil Procedure governs procedures in the district courts of Kansas, other than Chapter 61 actions, and also governs original proceedings in the Supreme Court on appeal, this fact alone does not eliminate the requirement of compliance with K.S.A. 60-225(a) regarding substitution of parties. A quick review of the rules contained in Article 2 demonstrates that although their applicability may be limited as provided in K.S.A. 60-201, their impact is often felt beyond district court actions and carries over into the appellate arena. For example, K.S.A. 60-261 contains the harmless error rule and K.S.A. 60-252(a) sets forth the scope of review for findings of the trial court. One commentator, remarking upon provisions of K.S.A. 60-265 which also addresses the applicable scope of Article 2, recognizes that some of the procedures, although not specifically imposed upon the appellate court, might nevertheless be applicable:

"While the section is silent as to the applicability of any of the rules with respect to appellate procedure, the applicability is apparent in such matters as the control over...