Palmer v. Helmer
| Decision Date | 07 April 1945 |
| Docket Number | 36283. |
| Citation | 157 P.2d 531,159 Kan. 647 |
| Parties | PALMER et al. v. HELMER et al. |
| Court | Kansas Supreme Court |
Appeal from District Court, Bourbon County; Harry W. Fisher, Judge.
Appeal from District Court, Bourbon County; Harry W. Fisher, Judge.
Quiet title action by Ralph Ralmer and others against Frank Helmer and others, and the Board of County Commissioners of the county of Bourbon. From a judgment for plaintiffs, the defendant Board of County Commissioners appeals.
Appeal dismissed.
Syllabus by the Court.
1. When the overruling of a motion for new trial is not assigned as error, any possible error committed thereby cannot be reviewed.
2. The mere fact that a motion for new trial is pending does not extend the time within which an appeal can be taken from a final judgment when such a motion is not necessary or proper and only requests a second ruling on the same question of law previously passed upon by the trial court.
3. The question of whether personal property tax liens upon real estate, entered in the same manner as a judgment, are such judgments as become dormant, cannot be passed upon as this court is without jurisdiction because the appeal was not perfected in time.
Frank O'Brien, Co. Atty., of Fort Scott, for appellant.
No appearance was made for appellees.
Douglas Hudson and Walter B. Patterson, both of Fort Scott (T. M Lillard, Robert L. Webb, Ralph F. Glenn, and Margaret McGurnaghan, all of Topeka, on the brief), amici curiae.
The appeal in this case raises the question whether personal property tax liens on real estate become dormant. To be more specific, the question is whether the abstract of the amount of delinquent personal property taxes, penalty and costs accompanied by the last tax warrant, when filed with the clerk of the district court and entered by him in his judgment docket as provided by G.S.1935, 79-2105, are judgments, and if so, are the liens upon real estate created thereby such judgments as become dormant under the provisions of G.S.1935, 60-3405, unless revived under G.S.1935, 60-3221.
The appeal arises out of a quiet-title action in which the board of county commissioners of Bourbon County Kansas, was named as a defendant along with others which others have not appealed. The question raises cannot be passed on in this appeal because this court does not have jurisdiction.
In the petition it was alleged that personal property tax judgments were of record against the land involved, which judgments had been filed in the years 1914, 1915 and 1916, and the petition further alleged that such tax judgments were dormant and was not, therefore, valid liens upon the real estate. On April 19, 1944, the trial court filed findings of fact, conclusions of law, a memorandum in which it set forth the reasons justifying its conclusions of law, and on the same date the trial court signed and the clerk filed a journal entry designated as a 'Decree in Quiet Title.' The decree set forth that the personal tax judgments were dormant and no longer a lien on the real estate, and further specifically set forth that the defendants, including the board of county commissioners, were forever restrained and enjoined from ever making any claim to the land involved and that the personal tax judgments (Italics supplied.)
It will thus be seen that on April 19, 1944, the district court passed upon the merits of the controversy and entered a decree in accordance with its findings and conclusions. Thereafter, on April 20, 1944, the board of county commissioners caused to be filed a motion for a new trial, in which the following grounds were set forth:
1st. Abuse of discretion by the court.
2nd. Erroneous rulings of the court.
3rd. The decision of the court is in whole or in part, contrary to the evidence.
On the 8th day of September, 1944, the trial court entered an order on the trial docket of said court overruling and denying the motion for new trial filed by the board of county commissioners, and entered judgment in favor of the plaintiffs and against the defendant board. Notice of appeal was served upon the plaintiffs and filed with the clerk of the court as of the 20th day of September, 1944, which date was approximately five months after the date the decree quieting title had been entered but within two months of the date when the motion for a new trial had been overruled. Examination of the only specification of error discloses that it reads as follows: 'The court erred in finding that personal property tax warrants, filed in the office of the Clerk of the District Court, pursuant to G.S. 79-2105 were judgments to which G.S. 60-3405 is applicable.'
It will be noted at once that the order overruling the motion for a new trial was not assigned as an error. Such being true, there is nothing properly before the court because the sole error complained of occurred at the time the trial court entered its decree quieting title, approximately five months before the notice of appeal was served.
The first syllabus in the case of Heniff v. Clausen, 154 Kan. 717, 121...
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