Reddington v. Rank, 39392

• Citation: 176 Kan. 484,271 P.2d 807
• Decision Date: 12 June 1954
• Docket Number: No. 39392,39392
• Parties: REDDINGTON v. RANK et al.
• Court: Kansas Supreme Court

Page 807

271 P.2d 807

176 Kan. 484

REDDINGTON v. RANK et al.

No. 39392.

Supreme Court of Kansas.

June 12, 1954.

Syllabus by the Court.

1. G.S.1949, 61-1001 provides for appeals from justice of the peace, city and county courts in civil cases.

2. The pertinent part of G.S.1949, 61-1003 provides: 'The district court shall try and determine the same as if originally filed therein, and may, in its discretion, order further or amended pleadings to be filed therein.'

3. Under the provisions of G.S.1949, 61-1003 the action in the district court is tried de novo. Pleadings filed in the court from which the appeal is taken have no further standing after the district court exercises its discretion and reforms plaintiff's bill of particulars pursuant to the statute and defendants' motion.

4. The record of proceedings in the district court, following an appeal from a judgment against plaintiff in a city court, examined considered and held: (a) It was error, under circumstances fully narrated in the opinion, to dismiss the action without prejudice on a day other than the first day of the term, when the case had not been assigned to the trial docket and plaintiff had no notice of such contemplated action, and to deny his motions to reinstate the action; and (b) to strike a certain portion of the amended bill of particulars set forth in the opinion.

J. Wirth Sargent, Wichita, argued the cause and was on the brief, for appellant.

Getto McDonald, Wichita, argued the cause, and William Tinker, Arthur W. Skaer, Jr., Hugh P. Quinn, and William Porter, Wichita, were with him on the brief, for appellees.

WEDELL, Justice.

Plaintiff filed an action in the city court of Wichita to recover damages alleged to have resulted in an automobile collision. Defendants prevailed and plaintiff appealed to the district court on October 10, 1949.

The pleadings in the city court consisted of an original and an amended verified bill of particulars and a verified answer which was a general denied. On November 5, 1949, defendants undertook to reform the pleadings and filed a motion in the district court to strike certain paragraphs of the bill of particulars. The grounds of the motion are nor disclosed. The court overruled the motion in part and sustained it in part. That ruling was made May 28, 1951, one year, six months any twenty-three days after it was filed. On July 17, 1951, plaintiff filed a new bill of particulars in conformity with the court's order. In a letter transmitting it to the clerk of the district court appellant enclosed a copy to defendants' counsel on which copy he included a postscript which read,

'I would appreciate it if the defendant would filed an answer in this case.'

Neither a demurrer nor an answer was filed to the amended bill of particulars. Nothing further appears to have happened insofar as the record before us discloses until the October, 1953, term of court. On October 7, which was not the opening day of the October term, the court, on its own motion, dismissed the action without prejudice at plaintiff's cost and ordered that execution issue. No grounds for dismissal are stated in the order. On October 20, 1953, plaintiff filed a motion to reinstate the case which reads:

'1. This case was praeciped for trial and since that time, so far as plaintiff or plaintiff's attorneys know, the case has not been placed on the trial docket and plaintiff has been waiting an opportunity to try the case and would like to have the dismissal set aside and the case reinstated and set for trial.'

The motion was overruled. No reason for the order is stated. On October 28 plaintiff filed a supplemental motion to reinstate which was:

'1. When the original Motion to Reinstate was filed, plaintiff's attorney was of the opinion that the case had been praeciped for trial, but the praecipe evidently was not filed nor made, but this is mentioned to show that there has been no intention on the part of plaintiff or plaintiff's attorney to have the case dismissed.

'2. For further reason, plaintiff states that this case cannot be dismissed 'without prejudice' for the reason that it is an appeal from the City Court wherein judgment was rendered against plaintiff and that if this case is dismissed it will be impossible for plaintiff to file the same again. This means that the dismissal is 'with prejudice'.

'3. There is no authority in the rules of this court effective January 14, 1952, which would authorize the dismissal of this case at this time.

'4. The action of the court in dismissing the case without prejudice, without notice to the plaintiff, is contrary to the established custom which has been to set the cases for trial and if the trial is not proceeded with by plaintiff then it would be dismissed for lack of prosecution.

'5. The procedure is contrary to G.S.1949, 60-3105, which provides for dismissal by the court without prejudice where plaintiff failed to appear on the trial.

'6. The action of the court in dismissing this case was arbitrary.

'7. Plaintiff states that he desired to offer evidence on this hearing to support this motion and also to supplement the original motion to reinstate.'

The second ground of the above motion has been abandoned on appeal. On the hearing of the last motion plaintiff introduced five exhibits which the abstract discloses were as follows:

'Plaintiff's Exhibit 1 is a letter dated November 29, 1949, from plaintiff's attorney to Mrs. Wayne Parsons, the court reporter in the City Court at the time of the trial of this action in said court, asking for a transcript of the testimony of Charles Rank and a transcript of the testimony of Ruth Reddington.

'Plaintiff's Exhibit 2 is another letter from plaintiff's attorney dated December 5, 1949, to Mrs. Wayne Parsons thanking her for her letter of December 2, 1949.

'Plaintiff's Exhibit 3 is the letter from the reporter to Mr. Sargent dated December 2, 1949, stating that it would be at least two weeks before she could get her books out of storage (she had married and moved from Wichita), that she had a deposition to be done first, and that it would then not take long, and that she would forward the transcripts when they were finished.

'Plaintiff's Exhibit 4 is a letter dated March 16, 1950, from Sargent to Mrs. Parsons inquiring about the transcript.

'Plaintiff's Exhibit 5 is a letter dated July 16, 1951, from Sargent to the Clerk of the District Court, enclosing the Second Amended Bill of Particulars for filing. A postscript on the copy thereof which was sent to Hugh Quinn reads as follows: 'I would appreciate it if the defendant would file an answer in this case.''

Counsel for plaintiff advised the court he was anxious to try the case.

The journal entry covering the court's ruling of November 2, 1953, reads:

'The court, being duly advised in the premises, finds that said Supplemental Motion to Reinstate should be, and the same hereby is overruled.

'It Is So Ordered.'

Plaintiff has appealed from the orders dismissing the action, denying his motions to reinstate and from the order striking a portion of his bill of particulars.

Appellant quotes rules of the district court of Sedgwick county adopted January 14, 1952, as follows:

"Rule No. 2. Praeciped Cases on Civil Jury Trial Docket.

"After the issues are made up between two or more parties in any case triable to a jury, either party may praecipe the case upon the jury trial docket by praecipe and not otherwise. Copy of the praecipe shall be mailed immediately to the adverse parties or their attorneys of record. [Appellant's emphasis.]

"Rule No. 3. Assignment of Cases and Place of Trial.

"All cases filed with the Clerk of the District Court shall be assigned to the various divisions by the Preliminary Judge drawing the case numbers given by the Clerk from a container.

"When a case is thus assigned the Judge of the division to which it is assigned shall have full charge of the case, except when the Judge of the division to which the case has been assigned is on vacation or is ill.

* * *

* * *

"Whenever a case is dismissed and refiled, it shall be reassigned to the division where pending when dismissed.

"Rule No. 4. Assignment of Cases for Trial.

"On the opening day of each term the judge of each division shall assign state cases for his division for trial during the jury session of that term.

"All civil jury cases praeciped on the civil jury trial docket shall stand for trial in the order in which they are praeciped on the trial docket in the division to which the cases have been assigned, or in the division to which the case has been transferred. [Appellant's emphasis.]

"It shall be the duty of every attorney having any cases upon the criminal docket to attend the call of the docket."

Appellant also states there is no rule of court relating to dismissal of an action for lack of prosecution. This statement is not denied by appellees.

Appellant's contentions may be summarized as follows: (1) At the time the action was dismissed appellees had filed no answer to the amended bill of particulars; (2) the court's action was contrary to the rules of the court; (3) it was contrary to custom in that court; (4) it will result in undue hardship to appellant; (5) it constituted an abuse of judicial discretion; and (6) violated the intent and purpose of G.S.1949, 60-3105, which reads:

'An action may be dismissed without prejudice to a future action:

'First. By the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court.

'Second. By the court where the plaintiff fails to appear on the trial.

'Third. By the court for want of necessary parties.

'Fourth. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence.

'Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.

'In all other cases, upon...