Messmore v. Hand, 41627

• Decision Date: 12 December 1959
• Docket Number: No. 41627,41627
• Citation: 185 Kan. 774,347 P.2d 402
• Parties: Robert Clyde MESSMORE, Appellant, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.
• Court: Kansas Supreme Court

Page 402

347 P.2d 402

185 Kan. 774

Robert Clyde MESSMORE, Appellant, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.

No. 41627.

Supreme Court of Kansas.

Dec. 12, 1959.

Syllabus by the Court

1. On appeal the rule is that error is never presumed, and it is incumbent upon the party complaining to indicate wherein it was committed.

2. Rule No. 5 of the Supreme Court requires that the abstract of the appellant shall include a specification of the errors complained of, separately set forth and numbered.

3. Where an appellant fails to separately set forth and number specification of errors in compliance with Rule No. 5 of the Supreme Court (183 Kan. XI; G.S.1949, 60-3826), appellate review is precluded, and his appeal will be dismissed.

Homer Davis, Leavenworth, was on the briefs for the appellant.

J. Richard Foth, Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gen., was with him on the briefs for the appellee.

FATZER, Justice.

In this habeas corpus proceeding the petitioner, Robert Clyde Messmore, seeks his release from confinement in the Kansas State Penitentiary. The district court denied the writ and petitioner has appealed.

A review of the record reveals that the petitioner has made no attempt to comply with Rule No. 5 of this court and we have repeatedly held in a long line of decisions that failure to comply therewith, by setting forth in the appellant's abstract the specification of errors complained of, is fatal and precludes appellate review. Dupont v. Lotus Oil Co., 168 Kan. 544, 213 P.2d 975, and cases therein cited; City of Independence v. Wendorff, 169 Kan. 14, 216 P.2d 820; Miller v. Rath, 173 Kan. 192, 244 P.2d 1213. In Quick v. Purcell, 179 Kan. 319, loc. cit. 320, 295 P.2d 626, loc. cit. 627, it was said:

'* * * Rule No. 5 of this court (see 174 Kan. XI; G.S.1949, 60-3826, 'Rules of the supreme court' No. 5) long in force and effect, among other things, provides:

"* * * The appellant's abstract shall include a specification of the errors complained of, separately set forth and numbered. * * *'

'The rule has been printed repeatedly in various volumes of the Kansas reports. Its purpose is designed to promote definiteness, fairness and orderly procedure of litigation on appellate review. It was intended to be of benefit to both the Bench and Bar alike. Specifically, its purpose is to advise both appellee and this court concerning error, or errors, which the appellant claims the trial court committed in rendering its judgment.

'Manifestly, this court cannot review error which is claimed was committed, if none is specified. 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 the duty of the party complaining to indicate wherein it was committed. Fakes v. Osborne, 165 Kan. 176,...