North Am. Finance Corp. v. Circle-B, Inc.

• Decision Date: 30 June 1956
• Docket Number: CIRCLE-,Nos. 40068,40069,I,s. 40068
• Parties: NORTH AMERICAN FINANCE CORPORATION, Appellee, v.nc., et al., Appellant. STEFFERN DAIRY FOODS COMPANY, Inc., Appellee, v.nc., et al., Appellant.
• Court: Kansas Supreme Court

Page 576

299 P.2d 576

180 Kan. 34

NORTH AMERICAN FINANCE CORPORATION, Appellee, v. CIRCLE-B, Inc., et al., Appellant.

STEFFERN DAIRY FOODS COMPANY, Inc., Appellee, v. CIRCLE-B, Inc., et al., Appellant.

Nos. 40068, 40069.

Supreme Court of Kansas.

June 30, 1956.

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 a party's right to be heard on appeal is challenged on the grounds of noncompliance with Rule No. 5 of the Supreme Court, 174 Kan. XI; G.S.1949, 60-3826, and it appears from the record he has made no attempt to comply with it, his appeal will be dismissed.

Roy S. Trail, John E. Lancelot and Garner E. Shriver, Wichita, were on the briefs for appellant.

Charles L. Davis, Jr., Topeka, argued the cause, and Howard A. Jones, William E. Haney and Ted R. Morgan, Topeka, and Everett C. Fettis, Keith M. Curfman and Robert C. Allan, Wichita, were with him on the briefs, for appellee.

FATZER, Justice.

These are appeals from an order denying motions of appellee Steffen Dairy Foods Company, Inc. and appellant Circle-B, Inc. to confirm the sale of real property ordered sold in a mortgage foreclosure proceeding. Since each appeal is from the same order denying confirmation, they were ordered consolidated in this court.

On November 15, 1952, Steffen Dairy Foods Company, Inc. (hereafter referred to as Steffen Dairy) instituted an action to foreclose its first mortgage covering the real estate involved. A few days later appellee United Finance and Thrift, a corporation, successor to North American Finance Corporation (hereafter referred to as North American), instituted a separate action to foreclose its second mortgage lien on the same real estate. The trial court consolidated North American's action with the Steffen Dairy action and tried the issues in one case. Additional junior lien holders were joined in the action together with the appellant, Circle-B, Inc., who was the owner of the real estate involved but not the maker of any of the mortgages. Judgment decreeing foreclosure was entered December 17, 1954. The real estate was advertised for sale and sold June 8, 1955, to Steffen Dairy for the sum of $15,218.38, the full amount of its first mortgage, interest, taxes and costs. Steffen Dairy filed its motion to confirm the sale and North American filed objections to the confirmation on the grounds that the sale price was grossly inadequate, and offered to tender into court a sum in excess of $20,000 as a fair and reasonable price for the real estate. The appellant, Circle-B, Inc., filed a motion to confirm the sale, and for an order overruling the objections to the confirmation filed by North American.

On June 30, 1955, the trial court sustained North American's motion objecting to the confirmation, and overruled the motions of Steffen Dairy and Circle-B, Inc. to confirm the sale. Circle-B, Inc. has appealed from the order denying confirmation.

North American appeared and argued these appeals; the appellant did not. Sometime prior to the argument North American filed a motion to dismiss the appeals on the grounds that the appellant's brief, which was ordered by this court to be filed by May 1, 1956, was not received by counsel for appellee until May 21, 1956, and further, that appellant failed to include specifications of error in its abstract of record in violation of Rule No. 5 of this court.

The contention of North American cannot be ignored. This court has repeatedly held that the purpose of Rule No. 5 of the Supreme Court, which, in part, reads:

'* * * The appellant's abstract shall include a specification of the errors complained of, separately set forth and numbered. * * *' 174 Kan. XI; G.S.1949, 60-3826 Rules of the Supreme Court No. 5, effective July 1, 1953.

is for the benefit of the Bench and Bar alike, and is designed to promote definiteness, fairness and orderly procedure of litigation on appellate review. It is to advise both the appellee and this court concerning error or errors, which appellant claims were committed by the trial court when it rendered its judgment.

Error is never presumed and it is incumbent upon the party complaining to indicate wherein error was committed. Although an appeal may be timely perfected, error or errors complained of must be specified and briefed in conformity with the published rules of the court, to obtain appellate review.

Here, the record contains no specifications of error and is in violation of Rule No. 5. North American cites authorities only in support of its motion to dismiss the appeals--no doubt, for the reason that it was not advised what errors appellant contends the trial court committed.

Following repeated warnings to attorneys for litigant, this court, in 1940, in Biby v. City of Wichita, 151 Kan. 981, 983, 101 P.2d 919, announced its future intention to require compliance with Rule No. 5 when it said:

'* * * It is not, however, for appellants to decide whether harm will result from non-compliance. With considerable hesitancy, we again overlook the omission for the reason that the appellee appears to have fully understood the issue raised by the appeal. We will consider the case on its merits. It may be well to say here, however, that the next appellants who disregard the rule may not fare so well. The court may be forced to the conclusion that the only way to impress consel with the importance of compliance is to rigidly enforce the rule.' 151 Kan. loc. cit. 983, 101 P.2d loc. cit. 920.

Subsequently, this court pointed out that there is no substitute for the specifications of error and that an assignment or specification of error that states only the trial court erred does not suffice. Lambeth v. Bogart, 155 Kan. 413, 415, 125 P.2d 377. In this case it was said:

'We have repeatedly ruled that even an assignment of error which merely alleges the trial court erred in rendering the judgment does not present any specific question for review. Fagerberg v. Johnson, 48 Kan. 434, 29 P. 684; Chicago Lumber & Coal Co. v. Smith, 84 Kan. 190, 114 P. 372; Heniff v. Clausen, 154 Kan. 716, 121 P.2d 196. Such an assignment, when actually made, amounts to nothing more than a statement that the judgment is wrong. It specifies no particular error and presents nothing for review.

'The rule requires that the specification of errors complained of be set forth and numbered in the abstract. Here there was no compliance with the rule in appellant's...