Roe Village, Inc. v. Board of County Com'rs

• Decision Date: 10 July 1965
• Docket Number: No. 44135,44135
• Citation: 195 Kan. 247,403 P.2d 970
• Parties: ROE VILLAGE, INC., Appellant, v. BOARD OF COUNTY COMMISSIONERS and D. L. Sandifer, Appellees.
• Court: Kansas Supreme Court

Page 970

403 P.2d 970

195 Kan. 247

ROE VILLAGE, INC., Appellant, v. BOARD OF COUNTY COMMISSIONERS and D. L. Sandifer, Appellees.

No. 44135.

Supreme Court of Kansas.

July 10, 1965.

Syllabus by the Court

1. An appeal taken from the district court's memorandum opinion before judgment has been entered is premature, and will be dismissed.

2. Under K.S.A. 68-258(b), where the district court directs that the form of the judgement be formally journalized, the judge- ment does not become effective until the journal entry is filed with the clerk.

3. The record in an action brought to test the reasonableness of an order of the Board of County Commissioners of Wyandotte County granting a change of zoning, is examined, and it is held: The appeal from a judgment not yet rendered presents nothing for judicial review, is premature, and must be dismissed.

Joseph H. McDowell, Kansas City, argued the cause, and Milton Abrams, Kansas City, was with him on the briefs for appellant.

Kenneth P. Soden, Mission, argued the cause, and Donald E. Martin, Kansas City, was with him on the briefs for appellees.

FATZER, Justice.

This was an action brought by Roe Village, Inc., to test the reasonableness of an order of the Board of County Commissioners of Wyandotte County in granting the appellee, D. L. Sandifer, a change of zoning.

Issues were joined and trial was by the district court on June 30, 1964, and taken under advisement. On July 6, 1964, the district court filed a detailed memorandum opinion upholding the order of the Board of County Commissioners. The last paragraph of the memorandum opinion reads:

'Counsel should prepare a Journal Entry of Judgment in line with the views here expressed denying plaintiff the relief it seeks. The judgment will not be effective until the date the Journal is signed by the Court and filed.' (Emphasis supplied.)

On July 21 1964, the appellant served and filed a notice of appeal 'from the decision of the District Court entered on July 6, 1964, in this action, including but not limited to the finding and decision of the Court dated July 6, 1964 * * * and all other findings and judgments entered on said date.'

Counsel for the parties were unable to agree on a journal entry, and each presented suggested journal entries to the court. Appellee-Sandifer filed a motion on August 11, 1964, asking the court to approve his journal entry. On September 5, 1964, the district court settled the matter by approving and signing the journal entry submitted by the appellant. The journal entry was filed with the clerk on that same day. No notice of appeal was served or filed by the appellant after the journal entry had been approved and signed by the court and filed with the clerk.

At the outset we are confronted with appellees' motion to dismiss the appeal, which was denied by this court with leave to renew when the case was heard on its merits. The appellees assert the appeal was prematurely filed for the reason that on July 21, 1964, there was no judgment of record from which an appeal could be perfected.

Appellant relies upon the district court's memorandum opinion filed July 6, 1964, as a final judgment, reviewable as such by this court.

A judgment is the final determination of the rights of the parties in an action. (K.S.A. 60-254[a].) It has long been settled that an appeal taken from a jury verdict or decision of the court before judgment has been rendered is premature and will be dismissed. (Upton v. Pendry, 110 Kan. 191, 203 P. 300; Skaggs v. Callabresi, 145 Kan. 739, 67 P.2d 566; Painter v. Monumental Life Ins. Co., 158 Kan. 585, 149 P.2d 626.) Whether a final judgment has been rendered in a given situation depends primarily upon the intention of the court, and upon the governing statutory provisions and rules.

The law in this jurisdiction with respect to the rendition of judgments and when they become effective was substantially changed by the adoption of the new code of civil procedure, effective January 1, 1964. The manner and method of entering a final judgment after a trial or hearing on the merits is presently governed by K.S.A. 60-258, which reads, in part:

'(a) Entry of judgment. Unless the judge otherwise directs and subject to the provisions of section 60-254(b), judgment upon the verdict of a jury shall be entered forthwith. The judge shall direct the appropriate judgment to be entered upon a special verdict or upon a general verdict accompanied by answers to interrogatories returned by a jury pursuant to section 60-249. When the judge directs that a party recover only money or costs or that all relief be denied, the clerk shall enter judgment forthwith upon receipt by him of the direction; but when the court directs entry of judgment for other relief, the judge shall promptly settle or approve the form of the judgment and direct that it be entered by the clerk.

'(b) What constitutes entry of judgment. If judgment is to be entered on the verdict of a jury, or by direction of the judge forthwith, the clerk shall make a notation of the judgment on the appearance docket as provided by section 20-2601, and such notation shall constitute the entry of judgment, and no journal entry or other document shall be required to render the judgment effective. If the judge directs that the form of the judgment is to be settled by a journal entry or other document, it shall be prepared in accordance with the directions of the judge who shall then sign the same and cause it to be filed with the clerk. Such filing shall constitute the entry of the judgment, and it shall not be effective before such filing. * * *' (Emphasis supplied.)

Generally speaking, the prevailing practice heretofore has been to settle all forms of judgment entry by a formal journal prepared and agreed upon as to form by counsel of...