State ex rel. Anderson v. Engler, 40653

Decision Date09 November 1957
Docket NumberNo. 40653,40653
Citation181 Kan. 1040,317 P.2d 432
PartiesSTATE ex rel. John ANDERSON, Jr., Attorney General, Appellee, v. Allen ENGLER, Sheriff, Shawnee County, Kansas, Appellant.
CourtKansas Supreme Court

Syllabus by the Court.

1. Although, upon appellate review, it appears that no order referring to the specific issue presented would be directly effectual because a period of time involved has expired or because other circumstances have changed, the appeal should not be dismissed as being moot if by leaving the judgment unreversed vital rights of the parties would thereby be affected.

2. The proper manner for parties and their attorneys to test the validity of an order of court is not to defy the order, but to move, in the court which issued it or in some court having supervisory jurisdiction, to have it set aside.

3. Under the provisions of G.S.1949, 60-1616 the five-day notice therein prescribed to be served on a public official sought to be ousted from office under Ch. 60, Art. 16 is a prerequisite to the entry by a court of an order of suspension.

John E. Bohannon, Topeka, argued the cause and was on the briefs for appellant.

Robert E. Hoffman, Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gen., was with him on the brief for appellee.

WERTZ, Justice.

This was an action in the nature of quo warranto brought by the state, on the relation of the attorney general, to oust the defendant, Allen Engler, sheriff of Shawnee county, from office on charges of willful misconduct. The petition was filed following an investigation of defendant's actions as sheriff, pursuant to G.S.1949, Ch. 60, Art. 16.

The petition, filed Saturday morning, January 12, 1957, in substance alleged that on January 11, 1957, defendant (appellant) while serving as sheriff of Shawnee county, attacked one Elmer McNish, a deputy sheriff, during an argument in defendant's office. In the course of the beating defendant announced to McNish that he was fired and under arrest. Defendant continued beating McNish, inflicting serious blows to his head, face and body, and finally ordered his prisoner removed to a high security cell ('the hole') in the county jail--a small concrete room with a solid steel door without toilet or sanitary facilities--where McNish was left without medical attention or examination. Plaintiff (appellee) further alleged that defendant was unfit to continue to hold office and to exercise the duties and prerogatives of sheriff and that his continuing in office, even for a very short period of time, constituted a danger and a hazard to the public and to the prisoners charged to his care and control. The prayer of the petition reads as follows:

'* * * plaintiff prays the Court for an order ousting the defendant Allen Engler from office and further upon the facts hereinabove alleged does request the Court for an immediate and forthwith suspension order relieving the defendant from exercising any of the duties or prerogatives of the office of sheriff and enjoining him from carrying out any function arising out of said office.' [Emphasis supplied.]

No summons was issued and no notice of the petition was given defendant, nor was he given an opportunity to be present at the ex parte hearing held in the judge's chambers some two hours after the filing of the petition, at which time the trial court issued an order on the verified petition, setting forth the facts summarized above and ordering as follows:

'* * * that defendant herein be forthwith suspended from any of the duties or prerogatives of the office of Sheriff of Shawnee County and is enjoined from carrying out or attempting to carry out any such duties or prerogatives, the office of Sheriff of Shawness County, Kansas, is duly hereby to be vacated.'

A copy of the order was sent defendant by special delivery mail, reaching him Sunday, January 13. Upon receipt of the order he relinquished his office to the undersheriff.

Defendant's term of office was to expire by operation of law at noon on Monday, January 14. Before noon of that date he filed a motion to vacate the suspension order, alleging, inter alia, that it was issued in disregard of the provisions of G.S.1949, 60-1616. A hearing was had on the motion the same day, and at that time the trial court found it had jurisdiction, the power and the authority to forthwith suspend defendant from any of his duties or prerogatives of his office as sheriff and to vacate that office forthwith without notice to defendant, regardless of the provisions of 60-1616 of the statutes. The court overruled defendant's motion to vacate. From this order, defendant appeals.

We will consider first the state's motion to dismiss the appeal. It contends that since defendant's term of office expired on January 14--two days after the action and order complained of--and since defendant acquiesced in the order for those two days the controversy is moot and judgment by this court would be unavailing. We cannot accept this contention.

In Moore v. Smith, 160 Kan. 167, 160 P.2d 675, this court declared that as a rule of policy it would not give opinions in matters where judgment could have no practical effect on a then existing controversy. The rule against deciding moot cases operates, even though questions of great public interest are involved. Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P.2d 1113.

However, since mootness does not affect the court's jurisdiction, it will proceed to judgment whenever dismissal of an appeal adversely affects any rights vital to the parties, even where its judgment will not be directly enforceable because of lapse of time or other changed circumstances. Se...

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10 cases
  • State v. Roat
    • United States
    • United States State Supreme Court of Kansas
    • June 19, 2020
    ...this court ought not to be occupied by the consideration of abstract questions of law, however important and interesting they may be.’ " State, ex rel., v. Railway , 90 Kan. 20, 56 P. 755 (1899) (quoting Hurd v. Beck, 88 Kan. 11, 12, 45 P. 92 [1896] ).In 1945, this court explicitly rejected......
  • Goldsmith v. State
    • United States
    • United States State Supreme Court of Kansas
    • July 1, 2011
    ...to move to have it set aside in the court which issued it or in some court having supervisory jurisdiction.” See also State ex rel. Anderson v. Engler, 181 Kan. 1040, Syl. ¶ 2, 317 P.2d 432 (1957) (appropriate method for challenging validity of court order is to challenge order by moving co......
  • State v. Williams
    • United States
    • Court of Appeals of Kansas
    • November 23, 1994
    ...for challenging the validity of a court order is to challenge the order by moving the court to set it aside. See, e.g., State, ex rel., v. Engler, 181 Kan. 1040, Syl. p 2, 317 P.2d 432 Despite the above-noted general rule, our Supreme Court has indicated a willingness to review the merits o......
  • Rosling v. Seattle Bldg. and Const. Trades Council
    • United States
    • United States State Supreme Court of Washington
    • September 5, 1963
    ...such a decision would not accomplish any purpose. The Supreme Court of Kansas expressed this thought in State ex rel. Anderson v. Engler (1957), 181 Kan. 1040, 317 P.2d 432, 434: 'However, since mootness does not affect the court's jurisdiction, it will proceed to judgment whenever dismissa......
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