Smith v. Kansas Transport Co.

• Decision Date: 08 December 1951
• Docket Number: No. 38378,38378
• Citation: 238 P.2d 553,172 Kan. 26
• Parties: SMITH v. KANSAS TRANSPORT CO., Inc.
• Court: Kansas Supreme Court

Page 553

238 P.2d 553

172 Kan. 26

SMITH v. KANSAS TRANSPORT CO., Inc.

No. 38378.

Supreme Court of Kansas.

Dec. 8, 1951.

Rehearing Denied Jan. 4, 1952.

Syllabus by the Court.

1. In the absence of a motion for new trial there can be no re-examination of issues of fact on appeal.

2. Assignments of error which merely state the trial court erred in rendering a judgment in favor of the prevailing party present no specific questions for appellate review and warrant dismissal of an appeal.

3. When the propriety of a judgment from which an appeal is taken depends upon controverted issues of fact a motion for new trial is a condition precedent to a review of the facts and, in the absence of such a motion, specifications of error to the effect the judgment complained of is erroneous present no questions which are subject to appellate review.

Harry F. Russell, of Hastings, Neb., argued the cases, and L. H. Ruppenthal, of McPherson, was with him on the briefs for appellant.

George R. Lehmberg, of McPherson, argued the cause, and J. R. Rhoades, of McPherson, was with him on the briefs for appellee.

PARKER, Justice.

This was an action for equitable foreclosure of a chattel mortgage in which the plaintiff recovered and the defendant appeals.

The facts giving rise to the controversy, as well as the issues involved in the court below, are so unusual that they can be understood only by reference to the pleadings.

Plaintiff, a resident of Colorado, commenced the action against defendant, a Kansas corporation, by filing a petition in the district court of McPherson county in which he alleged in substance that he had a first and prior lien on a certain motor vehicle, namely, an International transport truck, then in the possession of defendant, under and by virtue of a chattel mortgage, executed and delivered to him by one Marvin K. Custer, the then owner of such property, on the 21st day of September, 1947, at a time when it was situated in the county of El Paso in the state of Colorado, to secure the payment of an actual loan of $800. Under other allegations of such pleading it is asserted that on the day following its execution the mortgage was duly filed for record in the county and state wherein it was executed in conformity with the laws of such state, that such mortgage had never been paid, satisfied, or released of record and that plaintiff was entitled to a judgment foreclosing his mortgage lien on such personal property.

For present purposes, and without attempting to relate everything that is set forth therein, it can be said that defendant's answer to the petition consisted of a general denial and allegations which, when highly summarized, are to the effect that it purchased, became the owner of and acquired valid title to the property in question at private sale in foreclosure of mortgage liens and judgments against such property, pursuant to a decree of foreclosure entered by the district court of Adams county, Nebraska, on March 23, 1948, in accord with the laws of that state in an action, to which the plaintiff was not made a party, brought by the Hastings National Bank against Marvin K. Custer, et al., for the purpose of foreclosing a lien the bank had acquired on such property under and by virtue of a chattel mortgage executed and delivered to it by Custer on the 22nd day of October, 1947, in the state of Nebraska, at a time when the latter was a resident of such state and the property was located therein; that the plaintiff had knowledge of the filing, pendency, and completion of such foreclosure action, that he had knowledge of the physical whereabouts of the motor vehicle in question in the state of Nebraska and took no action or did nothing to claim or assert any lien against it as required by the laws of that state; that the plaintiff made no appearance in such action but suffered the same to proceed to decree and sale of the involved motor vehicle; and that by reason of such facts plaintiff was estopped, barred, and foreclosed from asserting any right, title or interest in the property under his mortgage.

The plaintiff filed a reply to the foregoing answer in which he denied generally all of its allegations and averments and specifically denied that he had any knowledge of the foreclosure action in the district court of Adams county, Nebraska, as therein alleged, or was estopped, precluded and enjoined from asserting any right, title, claim, or interest in and to the motor vehicle covered by the terms of his chattel mortgage.

With issues thus joined and upon evidence introduced by the parties in support of their respective positions the trial court, on November 30, 1950, without making specific findings of fact, rendered and entered a general judgment in favor of the plaintiff and against the defendant as prayed for in the plaintiff's petition and directed that the motor vehicle described in plaintiff's mortgage be sold under special execution as in proceedings of equitable foreclosure. It further directed that the proceeds of such sale be applied to payment of the lien found to be due under the terms of the mortgage and to the costs of the action and that the balance remaining, if any, be paid to the defendant.

Following rendition of the foregoing judgment the defendant filed no motion for a new trial. However, within the term at which it was rendered, defendant did file a motion to set aside and vacate the judgment. The record discloses there was no ruling on this motion by the trial court either during or after the term at which the judgment was rendered.

Within the time...