Miller v. Rath, 38660
| Decision Date | 07 June 1952 |
| Docket Number | No. 38660,38660 |
| Citation | 244 P.2d 1213,173 Kan. 192 |
| Parties | MILLER v. RATH et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Appellant's failure to comply with Rule 5 of the Supreme Court Rules (169 Kan. XI; G.S.1949, 60-3826), by including in his abstract of record such portions thereof as it is necessary to read in order to arrive at a full understanding of the questions presented for review and his failure to include a specification of errors complained of separately set forth and numbered, is fatal, and the appeal will be dismissed.
2. An order of the trial court, to be a final order and appealable, must be such an order as would result in a final determination of the action. Following Fincham v. Fincham, 171 Kan. 120, 231 P.2d 232.
George R. Gould, of Dodge City, was on the briefs for appellant.
Horace H. Rich, and Harold S. Herd, both of Coldwater, were on the briefs for appellees.
This was an action brought to foreclose a real estate mortgage. Appellant's abstract consists of a statement of facts of ten lines in which he states that the petition sets forth the mortgage, the amount due thereon as against the primary defendant (appellee Robert M. Rath), and alleges that certain others including defendant James E. Ely have or claim some interest in the property covered by the mortgage. It appears from the trial court's order that Ely was a judgment creditor of defendant Rath, the original mortgagor. None of the pleadings are abstracted, and who the other parties to the action were is not disclosed. The abstract contains nothing more than an order of the trial court setting forth that on the 9th of November, 1951, there came on for hearing a motion of defendant Ely for judgment declaring that his lien was prior to that of the mortgage lien owned by the plaintiff Miller (appellant here). The record does not disclose the contents of this motion nor the stage of the proceedings at which it was lodged. The court found that the judgment of the defendant Ely was a prior lien on the property in question to that of the mortgage lien held by plaintiff Miller. From the court's order, plaintiff appealed to this court.
Appellant's abstract contains neither a clear statement of the facts nor any specification of errors. Rule 5 of the Rules of the Supreme Court (169 Kan. XI, G.S.1949, 60-3825, 60-3826), long in force and effect, reads in pertinent part:
A review of the record reveals that appellant has made no attempt to comply with the rules of this court, and we have repeatedly held in a long line of decisions that failure to comply with the rules of the court by setting forth the specification of errors complained of is fatal, and the action will not be considered. Dupont v. Lotus Oil Co., 168 Kan. 544, 213 P.2d 975, and cases cited therein; City of Independence v. Wendorff, 169 Kan. 14, 216 P.2d 820. The purpose of the mentioned rule is to promote definiteness, fairness and orderly procedure on appellate review, and the sound and substantial reasons supporting it require its rigid enforcement. Dupont v. Lotus Oil Co., supra. Moreover, appellant has failed to reproduce such portions of the record in the cause below as would enable this court to arrive at a full understanding of the question presented for review and to arrive at any intelligent conclusion on the appeal.
Moreover, it is apparent from a reading of the record that the order entered therein was not a final order and that the parties apparently recognized this fact, as the...
To continue reading
Request your trial
-
Blevins v. Daugherty, 41888
...failure to include a specification of errors complained of separately set forth and numbered, is fatal, and following Miller v. Rath, 173 Kan. 192, 244 P.2d 1213 and Quick v. Purcell, 179 Kan. 319, 295 P.2d 626, the appeal is dismissed.' (Syl. pp 1, For a decision disclosing the above rule ......
-
North Am. Finance Corp. v. Circle-B, Inc.
...British American Oil Producing Co., 157 Kan. 101, 138 P.2d 463; Topping v. Tuckel, supra; Dupont v. Lotus Oil Co., supra; Miller v. Rath, 173 Kan. 192, 244 P.2d 1213; Gilley v. Gilley, 176 Kan. 61, 268 P.2d 938; Quick v. Purcell, 179 Kan. 319, 295 P.2d These appeals are dismissed. ...
-
McIntyre v. Dickinson
...463; Topping v. Tuckel, supra [159 Kan. 387, 155 P.2d 427]; Dupont v. Lotus Oil Co., supra [168 Kan. 544, 213 P.2d 975]; Miller v. Rath, 173 Kan. 192, 244 P.2d 1213; Gilley v. Gilley, 176 Kan. 61, 268 P.2d 938; Quick v. Purcell, 179 Kan. 319, 295 P.2d The judgment of the trial court is affi......
-
Stauth v. Brown
...surplus as the decree directs. Although this court has not directly ruled upon the issue presented here, the case of Miller v. Rath, 173 Kan. 192, 244 P.2d 1213 (1952), is relevant. In Miller, this court held that a decision by the trial court finding the lien of a judgment creditor superio......