Skaggs v. Callabresi
| Decision Date | 08 May 1937 |
| Docket Number | 33071. |
| Citation | 145 Kan. 739,67 P.2d 566 |
| Parties | SKAGGS v. CALLABRESI et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Verdict of jury held not appealable as "final order" or any "order" of district court or judge thereof (Gen.St.1935, 60-3103, 60-3302, 60-3303).
Notice of appeal including only verdict of jury held not an appeal from judgment, order overruling motion for new trial, or any other appealable order, and hence was insufficient to invoke jurisdiction of Supreme Court, requiring dismissal of appeal (Gen. St.1935, 60-3101, 60-3103, 60-3302, 60-3303, 60-3306.
1. The verdict of a jury is not a final order or in fact any order of a district court or judge thereof, and an appeal therefrom does not lie.
2. A notice of appeal which includes only the verdict of the jury does not constitute an appeal from the judgment, from the order overruling the motion for a new trial, or from any other appealable order. It does not invoke the jurisdiction of this court for the purpose of any review and the appeal must be dismissed.
Appeal from District Court, Leavenworth County; J. H. Wendorff Judge.
Action by W. O. Skaggs against J. D. Callabresi and another. Judgment for plaintiff, and defendants appeal.
Appeal dismissed.
T. W Bell, of Leavenworth, for appellants.
Malcolm N. McNaughton and James N. Snyder, both of Leavenworth, for appellee.
This was an action in ejectment. Plaintiff prevailed, and defendants appeal.
In a supplemental abstract defendants list thirteen specifications of error. G.S. 1935, 60-3306, provides what must be contained in a notice of appeal in order to make alleged errors reviewable. The pertinent portion thereof 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, and if the appeal is taken from only a part of the judgment, or from a particular order or decision, then by stating from what part of the judgment, or from what particular order or decision the appeal is taken."
In the instant case an appeal has been perfected only from the verdict of the jury. The pertinent portion of the notice of appeal reads:
"You are hereby notified that the defendants, J. D. Callabresi and Clara Callabresi, hereby appeal from the verdict rendered by the jury in this case to the Supreme Court of the State of Kansas." (Italics inserted.) It will be observed the notice of appeal included neither the judgment, the order overruling the motion for a new trial, nor any other order or decision of the trial court. The errors alleged are trial errors. It therefore follows that even though there had been an appeal from the judgment itself, this court would have acquired no jurisdiction to consider trial errors unless an appeal had been perfected from the order overruling the motion for a new trial. Buzbee v. Morstorf, 105 Kan. 270, 182 P. 644; Hardman Lumber Co. v. Spitznaugle, 130 Kan. 346, 286 P. 235; Dolan Mercantile Co. v. Wholesale Grocery Subscribers, 131 Kan. 374, 291 P. 935, and Salt City Building, Loan & Savings Association v. Peterson et al. (Kan.) 67 P.2d 564 (decided this day).
The code of civil procedure prescribes the appellate jurisdiction of this court. It does not provide for appeals from verdicts alone. It provides only for appeals from orders of a district court or a judge thereof. The pertiment portion of G.S. 1935, 60-3302, reads:
"The supreme court may reverse, vacate or modify any of the following orders of the district court or a...
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Nicholas v. Latham
...Co., 168 Kan. 259, 264, 212 P.2d 348; Salt City Building, Loan & Savings Ass'n v. Peterson, 145 Kan. 765, syl. 1, 67 P.2d 564; Skaggs v. Callabresi, 145 Kan. 739, syl. 2, 67 P.2d 566; Mundell v. Franse, 143 Kan. 139, 140, 53 P.2d 811, and other cases cited in the above.' See, also, Kniffen ......
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Curtis v. Kansas Bostwick Irr. Dist. No. 2
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