Polzin v. National Co-op. Refinery Ass'n

Decision Date09 June 1956
Docket NumberNo. 39966,39966
Citation298 P.2d 333,179 Kan. 670
PartiesWilliam M. POLZIN, Appellee, v. NATIONAL COOPERATIVE REFINERY ASSOCIATION, a Corporation, Appellant.
CourtKansas Supreme Court

Syllabus by the Court.

1. The supreme court has only such appellate jurisdiction as is conferred by statute pursuant to Art. 3, § 3, of the Constitution, and when the record discloses lack of jurisdiction by reason of noncompliance with G.S.1949, 60-3306 and G.S.1949, 60-3309, it is the duty of the supreme court to dismiss the appeal.

2. G.S.1949, 60-3306 provides three steps to be taken to perfect an appeal to this court when the adverse party or his attorney of record resides in this state, which are: (1) by filing notice of appeal with the clerk of the trial court, stating the party filing the same appeals from the judgment, order or decision complained of to the supreme court; (2) by personally serving a copy of such notice on all adverse parties whose rights are sought to be affected, or their attorneys of record; and, (3) by making proof of such service by affidavit within the time prescribed by G.S.1949, 60-3309, unless service is acknowledged by all adverse parties or their attorneys of record and proof thereof by affidavit is waived, or unless service is acknowledged by signing and returning to the sender a registered mail receipt card.

3. Personal service of a notice of appeal upon the adverse party and proof thereof by an undersheriff who made such service in the form and manner of a return of service of summons under the facts, circumstances and conditions set forth in the opinion, does not comply with the requirements of G.S.1949, 60-3306, and is not proof of service as required by the statute to perfect an appeal.

4. Where an appeal is sought to be perfected pursuant to G.S.1949, 60-3306, and G.S.1949, 60-3309 by personal service of a copy of the notice of appeal on the adverse party, and proof of such service requires the evidence of a third party, such evidence of service is required to be under oath in the form of an affidavit of the party making such service.

5. The record examined, considered, and held: That the appeal was not perfected pursuant to G.S.1949, 60-3306, nor within the time prescribed by G.S.1949, 60-3309, and it is not before this court for appellate review.

Emmet A. Blaes, Wichita, argued the cause, and R. C. Russell, Don C. Foss and Isabel Obee, Great Bend, and Cecil E. Merkel, Jr., W. D. Jochems and J. Wirth Sargent, Wichita, were with him on the briefs for appellant.

Boyce P. Hardman, Great Bend, argued the cause, and Herbert Diets, Great Bend, was with him on the briefs for appellee.

FATZER, Justice.

This is an appeal from a judgment awarding actual and punitive damages for the pollution of plaintiff's deep fresh water supply on his farm in Barton County resulting from the escape of defendant's oil field brine. The suit was commenced May 29, 1950. A mistrial first resulted, and defendant appealed to this court from an order overruling its demurrer to plaintiff's evidence. This court affirmed the judgment of the district court, and remanded the case for retrial. Polzin v. National Cooperative Refinery Ass'n, 175 Kan. 531, 266 P.2d 293. The case was retried by a jury in December, 1954, when the jury returned a verdict for the plaintiff. The trial court overruled defendant's posttrial motions and rendered judgment in favor of the plaintiff on February 28, 1955.

William M. Polzin died testate November 1, 1955, and Matt Polzin and Romauld Polzin were appointed executors of the decedent's estate. The action was revived in the name of Matt Polzin and Romauld Polzin, executors of the estate of William M. Polzin, deceased. For the purpose of this opinion Matt Polzin and Romauld Polzin are hereinafter referred to as appellee and the National Cooperative Refinery Association, a Corporation, as appellant.

At the outset our jurisdiction to hear this appeal is challenged. Appellee filed a motion to dismiss this appeal for the reason it was not perfected within two months from the date of the judgment, in compliance with G.S.1949, 60-3309, since proof of service of the notice of appeal was not made in the manner provided in G.S.1949, 60-3306 to perfect the appeal. When the motion to dismiss was filed in this court, it was passed to be heard on the merits of the appeal.

The notice of appeal as certified to this court has typed on it a form of an acknowledgement of service to be executed by counsel for the appellee, acknowledging that a copy of the notice of appeal was personally served upon them April 28, 1955. This acknowledgement of service was not signed. We are advised by counsel for appellee that a copy of the notice of appeal was not served upon them. In lieu of this acknowledgement, the notice of appeal contains a statement by one Hoyt Smiley, as follows:

'Sheriff's Return

'State of Kansas, County of Barton, ss:

'Received this notice of appeal on the 28th day of April, 1955, and served the same in the City of Hoisington, Barton County, Kansas, by delivering a true and correct copy of the said notice of appeal to William M. Polzin personally on this 28th day of April, 1955.

'Sheriff of Barton County, Kansas

'By /s/ Larry Prince

'By /s/ Hoyt Smiley,

'Undersheriff.'

The notice of appeal and the undersheriff's return were filed in the office of the clerk of the district court April 28, 1955. On May 11, 1955, the appellee filed a motion to dismiss the appeal. On May 26, 1955, appellant filed an affidavit of Hoyt Smiley, undersheriff, which is summarized as follows: That he was, on April 28, 1955, the duly appointed, qualified and acting undersheriff of Barton County, Kansas; that on said date he received the Notice of Appeal from one of appellant's counsel, and that thereafter and on the same date he delivered to William M. Polzin, personally, a copy of said Notice of Appeal; that following said personal service upon William M. Polzin and on the same date, he did duly make return of the Notice of Appeal to the office of the clerk of the district court of Barton County, and did personally sign such return.

G.S.1949, 60-3309, in part, reads:

'The appeal shall be perfected within two months from the date of the judgment or order from which the appeal is taken * * *.' (Emphasis ours.)

G.S.1949, 60-3306 provides the manner in which appeals to the supreme court shall be perfected. So far as here pertinent, this statute reads:

'Appeals to the supreme court shall be taken by notice filed with the clerk of the trial court, stating that the party filing the same appeals from the judgment, order or decision complained of to the supreme court * * *. A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal * * *. Proof of such service shall be made by affidavit * * * and thereupon the appeal shall be deemed to be perfected.' (Emphasis ours.)

As preliminary, we note the long established and ofttimes repeated rules of this court to the effect that there is no vested right to an appeal to this court, and where an appeal is not perfected within the statutory period, this court does not have jurisdiction to entertain the appeal. Johnson v. Lander, 140 Kan. 329, 330, 36 P.2d 1006; Eikelberger v. Saline County Comr's, 151 Kan. 619, 100 P.2d 651; Finley v. Standley, 151 Kan. 520, 99 P.2d 746; Wiseman v. Richardson, 154 Kan. 245, 118 P.2d 605; Achenbach v. Baker, 157 Kan. 292, 139 P.2d 407; Palmer v. Helmer, 159 Kan. 647, 157 P.2d 531; Steinmeyer v. Barnett, 172 Kan. 215, 239 P.2d 827; Colyer v. Wood, 178 Kan. 5, 283 P.2d 398; that it is the duty of this court, when the record discloses lack of jurisdiction, to dismiss the appeal, Bradley & Vrooman Co. v. Summer, 110 Kan. 662, 205 P. 609; Shively v. Burr, 157 Kan. 336, 139 P.2d 401; Palmer v. Helmer, supra; Byars v. Dix, 164 Kan. 303, 188 P.2d 662; Kowing v. Douglas County Kaw Drainage Dist., 167 Kan. 387, 207 P.2d 457; that this court cannot enlarge the scope of the statute prescribing the manner of appealing to this court by judicial interpretation, Morell v. Massa, 1 Kan. 224; Phillips v. State Highway Comm., 148 Kan. 702, 705, 84 P.2d 927; Shields v. State Highway Commission, 178 Kan. 342, 345, 286 P.2d 173; that if there are to be exceptions to the plain language of the statute they must be made by the legislature and not by the courts, Thomas v. City of Coffeyville, 145 Kan. 588, 590, 66 P.2d 600; that this court has only such appellate jurisdiction as is conferred by statute pursuant to Art. 3, § 3 of the Constitution, Kansas City v. Dore, 75 Kan. 23, 88 P. 539; Allen v. Glitten, 156 Kan. 550, 134 P.2d 631; Eikelberger v. Saline County Com'rs, supra; Williams v. Seymour Packing Co., 174 Kan. 168, 254 P.2d 248; City of Hutchinson v. Wagoner, 163 Kan. 735, 186 P.2d 243; that an appeal, which is not perfected within the time prescribed by the statute, is a nullity and may not be amended, Salt City Building Loan & Savings Ass'n v. Peterson, 145 Kan. 765, 767, 67 P.2d 564; Klemenc v. Klemenc, 164 Kan. 649, 652, 192 P.2d 171; that an appeal is perfected by proper service of the notice of appeal and filing proof thereof with the clerk of the trial court, Schmuck v. Missouri K. & T. R. Co., 85 Kan. 447, 116 P. 818; Fisher v. Spillman, 85 Kan. 552, 118 P. 65; Thisler v. Little, 86 Kan. 787, 121 P. 1123; Zagranis v. Zagranis, 159 Kan. 456, 457, 156 P.2d 847, and, that when the appellee and his attorney of record reside in this state the service of the notice of appeal must be made in the same manner as service of summons, Thisler v. Little, supra, unless service of the notice of appeal is acknowledged by appellee or his attorney of record and proof of service by affidavit is waived, Thisler v. Little, supra; Wollard v. Peterson, 143 Kan. 566, 571, 56 P.2d 476, or unless the appellee or his attorney of record, residing in this state, acknowledges service of a copy of the notice of...

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15 cases
  • Duncan's Estate, Matter of
    • United States
    • Kansas Court of Appeals
    • January 14, 1982
    ...jurisdiction. They rely particularly on In re Estate of Torrence, 204 Kan. 443, 464 P.2d 193 (1970); Polzin v. National Cooperative Refinery Ass'n, 179 Kan. 670, 298 P.2d 333 (1956), and St.L.K. & S.W.Rly.Co. v. Morse, 50 Kan. 99, 31 P. 676 More recent cases, however, are to the contrary. I......
  • Edwards v. Edwards
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    • Kansas Supreme Court
    • April 12, 1958
    ...when the record discloses lack of jurisdiction, it is the duty of the supreme court to dismiss the appeal (Polzin v. National Cooperative Refinery Ass'n, 179 Kan. 670, 298 P.2d 333, and cases cited p. The appellate jurisdiction of the supreme court is prescribed in G.S.1949, 60-3302. That p......
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    ...and when the record discloses lack of jurisdiction, it is the duty of the court to dismiss the appeal. (Polzin v. National Cooperative Refinery Ass'n, 179 Kan. 670, Syl. p1, 298 P.2d Considering the record presented, our statute (G.S.1949, 60-3302, 60-3303) and our decisions preclude appell......
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