Nicholas v. Latham

• Decision Date: 07 April 1956
• Docket Number: No. 40000,40000
• Citation: 295 P.2d 631,179 Kan. 348
• Parties: H. J. NICHOLAS, Appellee, v. Marshall H. LATHAM and Bernice E. Latham, Appellants.
• Court: Kansas Supreme Court

Page 631

295 P.2d 631

179 Kan. 348

H. J. NICHOLAS, Appellee, v. Marshall H. LATHAM and Bernice E. Latham, Appellants.

No. 40000.

Supreme Court of Kansas.

April 7, 1956.

Rehearing Denied May 8, 1956.

Syllabus by the Court.

1. When a notice of appeal particularly specifies the order of the trial court from which the appeal is made, but such notice does not include the ruling on a demurrer made during the trial, the order of the trial court overruling the demurrer is no part of the appeal and presents nothing for appellate review.

2. When a verdict rendered by a jury does not meet the approval of the trial court, no duty is more imperative than to set the verdict aside and grant a new trial.

3. Normally, when a trial court grants a new trial, the effect of it is not only to set aside any general verdict which has been rendered by the jury, but also to set aside the special questions.

4. The record in this case examined, and it is held: That the trial court did not err in granting a new trial.

Louis A. Silks, Jr., Merriam, argued the cause and was on the briefs for appellants.

A. J. Herrod, Kansas City, argued the cause, and Edward T. Matheny, Jr., Kansas City, Mo., and John W. Breyfogle, Jr., Olathe, were with him on the briefs for appellee.

FATZER, Justice.

This was an action in replevin to recover possession of an automobile. The trial was had by a jury, which found for defendants. This appeal is from an order granting plaintiff a new trial and setting aside an answer to a special question.

The pleadings may be summarized as follows: The petition alleged that defendants (appellants) Marshall H. Latham and Bernice E. Latham are husband and wife; that they executed and delivered to plaintiff (appellee) the promissory note and chattel mortgage in question; that the chattel mortgage was duly recorded; that default had been made on the promissory note and chattel mortgage, and that defendants had failed to deliver possession of the automobile on demand. The prayer was for possession of the automobile described in the chattel mortgage, and if possession could not be had, for judgment against defendants upon the promissory note, and for damages for wrongful detention of the automobile.

The defendants filed separate pleadings. The answer and counterclaim of Bernice E. Latham specifically denied the execution of the promissory note and the chattel mortgage. It alleged her joint ownership of the automobile; that it was used by her husband as the head of their family in his business and for his means of livelihood and was exempt; that the chattel mortgage was void because she did not sign it and that plaintiff had no right or title to the automobile. Her counterclaim asked actual and exemplary damages for the illegal and malicious acts of plaintiff in taking and depriving her of the use of the automobile and for its return to her possession.

The answer and counterclaim of Marshall H. Latham was similar in purport to that of Bernice. He expressly denied the execution of the promissory note and the chattel mortgage. He alleged that he was the joint owner of the automobile with his wife; that it was used in his business and for the means of livelihood for himself and his family; that it was exempt personal property under the laws of Kansas; that his wife did not sign the alleged chattel mortgage and that pursuant to G.S.1949, 58-312, the purported instrument was void. His counterclaim, like that of his wife, asked for actual and exemplary damages for the illegal and malicious acts of plaintiff in taking and depriving him of the use of the automobile in his business; for its return to his possession, and for the reasonable value of services he had rendered plaintiff, which were due and unpaid.

Plaintiff replied to the new matters alleged in the answer of each defendant. He denied that the automobile was exempt. He alleged that if Bernice did not actually execute and sign her own name to the promissory note and the chattel mortgage, they were nonetheless valid for the reason she authorized the execution of the chattel mortgage and that it was executed by her authorized agent and binding upon her as principal; that she had ratified its execution by her agent and was bound thereby; that the chattel mortgage was a purchase money mortgage and her signature was not essential to its validity; and, further alleged that Bernice was estopped from denying she executed and signed the promissory note and chattel mortgage by reason of her acts and conduct, which are not herein detailed.

A reply of similar import was filed to Marshall's answer and counterclaim.

With the issues thus joined, the cause was tried by a jury.

At the close of plaintiff's evidence, each defendant demurred. The demurrers were overruled. The defendants did not elect to stand on their demurrers, but introduced their evidence. The jury returned a general verdict for the defendants, and answered all special questions submitted by the court favorable to the contentions of the defendants.

Timely motions were filed by plaintiff to vacate and set aside the verdict rendered by the jury; to grant plaintiff a new trial, and to set aside the jury's answer to special question No. 7.

The trial court made the following memorandum order:

'Now on this 7th day of April, 1955, the Court determines that the motion of the plaintiff for a new trial in the above entitled matter should be and is hereby sustained, and further finds that the motion to set aside the answer to specific question No. 7 should be and the same is hereby sustained.

'The Court is dissatisfied with the verdict rendered on all of the evidence and pleadings presented.' (Emphasis supplied.)

For purposes hereinafter noted, defendants' notice of appeal is set forth herein, which reads:

'Take notice that the defendants, Marshall H. Latham and Bernice E. Latham, do and hereby appeal from the order rendered and made in the above-entitled action on the 7th day of April, 1955, said order sustaining plaintiff's motion for a new trial and plaintiff's motion to set aside the answer to special question No. 7.'

We shall take up defendants' first specification of error. It is contended that the trial court erred when it overruled the demurrers at the close of plaintiff's evidence. A short answer to this contention is that defendants did not appeal from the order overruling their demurrers, consequently, this point is not before us. The appeal is only from the order of the trial court of April 7, 1955, which sustained plaintiff's motion for a new trial and set aside the jury's answer to special question No. 7. No effort was made by defendants to amend their notice of appeal, as authorized by G.S.1949, 60-3310, and thus broaden its scope to include the contention here made. This court has previously held that rulings on motions or demurrers, not included in the notice of appeal, are not subject to appellate review. In Baker v. John D. Maguire's, Inc., 176 Kan. 579, 580, 272 P.2d 739, 740, the court said:

'We are confronted with complaints on rulings as to matters which were the grounds for a motion for a new trial, but there is no appeal from that ruling, nor for that matter any appeal from any ruling made either during or subsequent to the trial. It has been held repeatedly that rulings on such motions not included in the notice of appeal are not subject to review. See, e. g., In re Estate of Young, 169 Kan. 20, 217 P.2d 269; Toklan Royalty Corp. v. Panhandle Eastern Pipe Line Co., 168 Kan. 259, 264, 212 P.2d 348; Salt City Building, Loan & Savings Ass'n v. Peterson, 145 Kan. 765, syl. 1, 67 P.2d 564; Skaggs v. Callabresi, 145 Kan. 739, syl. 2, 67 P.2d 566; Mundell v. Franse, 143 Kan. 139, 140, 53...