Neagle v. Brooks

• Decision Date: 17 May 1969
• Docket Number: No. 45313,45313
• Citation: 454 P.2d 544,203 Kan. 323
• Parties: Corinne Anne Staigg NEAGLE, Appellant, v. William BROOKS and Maud Ella Brooks, Appellees.
• Court: Kansas Supreme Court

Page 544

454 P.2d 544

203 Kan. 323

Corinne Anne Staigg NEAGLE, Appellant, v. William BROOKS and Maud Ella Brooks, Appellees.

No. 45313.

Supreme Court of Kansas.

May 17, 1969.

Rehearing Denied June 11, 1969.

Syllabus by the Court

1. An appeal from an order denying a motion under K.S.A. 60-260(b) for relief from a judgment presents for appellate review only the order of denial and not the judgment.

2. Where a court has jurisdiction of the parties and the subject matter of the action, a judgment entered by it is not void by reason of failure of the judge to cause written notice of the general nature of the judgment to be mailed immediately to a party who was not present when entry of the judgment was directed (following rule No. 115 of this court).

3. A motion for relief from a final judgment under K.S.A. 60-260(b) is addressed to the sound discretion of the trial court, and upon appeal its action is reviewable only for abuse of discretion.

4. K.S.A. 60-260(b) was not intended as an alternative method of appellate review, not as a means of circumventing time limits on appeal, except where compelling considerations of justice require that course. It was not intended to provide a procedure to challenge a supposed legal error of the court, nor to obtain relief from errors which are readily correctable on appeal.

5. The broad language of K.S.A. 60-260(b)(6) authorizing relief for 'any other reason justifying relief from the operation of the judgment' gives the courts ample power to vacate judgments whenever such action is appropriate to accomplish justice. This power is not provided in order to relieve a party from free, calculated and deliberate choices he has made. The party remains under a duty to take legal steps to protect his interests.

6. A motion for relief from a judgment under K.S.A. 60-260(b)(6) must be made within a reasonable time.

Charles W. Hess, Kansas City, Mo., argued the cause, and Conrad Miller, Kansas City and Charles White Hess and John G. Miller, Kansas City, Mo., were with him on the brief, for appellant.

A. B. Howard, Kansas City, argued the cause, and Charles S. Scott, Topeka, was with him on the brief, for appellees. HARMAN, Commissioner.

This is an action to secure possession of and to quiet title to real estate. Procedural problems are involved.

To get to the heart of the matter it is necessary to detail the tortured course this litigation has taken.

January 8, 1964, plaintiff-appellant filed in the trial court her amended petition in ejectment, to quiet title and for damages against defendants-appellees. She claimed a remainder interest to approximately twenty acres of land in Wyandotte county by virtue of her great grandfather's will and codicil admitted to probate in Missouri. Both of these instruments were attached to her petition.

February 19, 1964, appellees filed their motion to dismiss the action on the ground the petition did not state facts sufficient to constitute a cause of action. This motion was heard in May, 1964, both parties appearing by their attorneys. By letter dated June 11, 1964, the then trial judge advised counsel he was of opinion the motion to dismiss should be sustained. The judge stated in his findings the property was subject to Kansas law and that the codicil executed approximately eighteen years after the original will contained no reservations, restrictions or limitations of any kind. Parenthetically, it should be explained this finding disposed of appellant's claim of remainder interest in the real estate. The judge also stated that 'in addition' counsel for appellees had on that day exhibited two deeds 'covering' the property in question, one deed dated in 1919 and a tax deed dated in 1947. The letter then directed counsel to 'prepare journal entry in accordance with the Court's findings as of June 12th' and return it to the court for signature. Thereafter counsel were unable to agree on the form of the journal entry of judgment and consequently a journal entry sustaining appellees' motion to dismiss was not filed until March 12, 1965. This journal entry recited as grounds for the dismissal a finding that appellant's petition did not state facts sufficient to constitute a cause of action. The journal entry did not mention that deeds had been exhibited. It does appear that appellees had furnished information concerning the deeds to appellant's local counsel prior to their exhibition to the court.

Factual controversy exists between counsel as to the preparation and submission of proposed journal entries by each side but apparently the one finally signed by the trial judge was prepared by him and was not approved as to form by appellant's counsel. It also appears appellant and her counsel had no actual notice of the signing and filing of this journal entry until at a later time, as we shall presently note.

Meanwhile, everyone proceeded as though appellant's case had been dismissed on June 11, 1964. June 18, 1964, appellant filed her motion to vacate the order of dismissal made on June 11, 1964, and for a new trial. This motion was heard on August 21, 1964, and on September 2, 1964, was overruled. Journal entry embodying this order was filed on September 11, 1964. Also on that date appellant filed her motion for leave to file a second amended petition. This motion was overruled on October 9, 1964, but the journal entry embodying the denial order was not filed until March 12, 1965. In it the trial judge stated that under our present procedural code a motion to dismiss is treated as a motion for summary judgment.

On October 9, 1964, appellant filed her notice of appeal to this court, appealing from 'the order of the court rendered and made in the above entitled action on the 11th day of September, 1964, whereby it was by the court decided and ordered that defendants' motion to dismiss the above entitled matter should be sustained. * * *' Appellant did nothing further respecting this appeal with the result it was never perfected and was abandoned.

On February 8, 1965, appellant commenced an action against appellees in the United States District Court for the District of Kansas by the filing there of a petition which, except for jurisdictional requirements was virtually identical with the first amended petition she had previously filed in state court. March 1, 1965, appellees responded in the federal court action by filing their motion to dismiss it on the grounds the petition did not state facts sufficient to constitute a cause of action and that the matter involved had been adjudicated in the district court of Wyandotte county, Kansas. This motion being denied, appellees on March 29, 1965, filed their answer incorporating therein the defenses asserted in their motion to dismiss and attaching thereto copies of the pleadings and the orders entered in the state court action. The copies so attached included the order filed March 12, 1965, sustaining appellees' motion to dismiss. Both parties then filed motions for summary judgment. Eventually the federal district court granted appellees' motion for summary judgment, holding that res judicata foreclosed the federal court suit alleging the same cause of action over the same subject matter against the same parties.

Appellant then appealed the adverse decision to the United States Court of Appeals, Tenth Circuit. That court on January 25, 1967, affirmed the judgment of the federal district court (Neagle v. Brooks, 373 F.2d 40), saying, among other things: 'The District Court properly granted appellees' motion for summary judgment on the ground of res judicata.' (p. 44.) Rehearing of this appeal was denied March 22, 1967.

Appellant then resumed her litigation in the Wyandotte county district court by filing on April 3, 1967, her motion

'* * * for an order to set aside and purge the record of the Journal Entry entered and filed herein on the 12th day of March, 1965, for the reason that such Journal Entry was an ex parte order approved and entered without notification as required by the laws of Kansas, was improper, illegal and invalid and for a further order entering a valid judgment in accordance with the letter written by the court on June 11, 1964, wherein the grounds for sustaining defendants' motion were set forth.'

This motion was heard on June 16, 1967, and on appellant's application was expanded to include the second journal entry filed on March 12, 1965, wherein appellant's motion for permission to file a second amended petition was overruled. The amended motion was overruled by an order entered August 25, 1967. Appellant has now appealed from this latter order.

Appellant states her motion was based upon K.S.A. 60-260(b), (4) and (6), which provide:

'On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: * * * (4) the judgment is void; * * * or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time * * *.'

It should be borne in mind this appeal from the order denying the motion for relief from the judgment brings up for our review only the denial order and not the judgment, the time for appeal from the judgment having long since expired.

Appellant contends the procedure employed in journalizing the June 11, 1964, order rendered it void. She points out the journal entry was never approved by her and was entered without notice to her, and states its entry was in violation of rules No. 49 and No. 50 of this court relating to procedure of district courts (G.S.1949, 60-3827). These rules relied upon were superseded January 1, 1964, in connection with the enactment of our present procedural code, by rule No. 115 (194 Kan. xxv-xxvi; K.S.A. 60-2702) which provides:

'Notice of Rulings and Judgments. Whenever a judge shall make a ruling on a motion or application of any kind and there are affected part...