Stock v. Union Pac. R. Co.

• Decision Date: 08 November 1958
• Docket Number: No. 41086,41086
• Parties: Henry STOCK, Appellant, v. UNION PACIFIC RAILROAD CO., Appellee.
• Court: Kansas Supreme Court

Page 549

331 P.2d 549

183 Kan. 659

Henry STOCK, Appellant, v. UNION PACIFIC RAILROAD CO., Appellee.

No. 41086.

Supreme Court of Kansas.

Nov. 8, 1958.

Rehearing Denied Dec. 12, 1958.

Syllabus by the Court.

1. The provisions of G.S.1957 Supp., 60-3314a, are not to be construed as contemplating that the filing of an unnecessary and improper motion for a new trial and then appealing from the order overruling that motion extend the time in which appeals from rulings, sustaining a demurrer to the evidence and a judgment rendered pursuant thereto, must be taken under the requirements of G.S.1949, 60-3309.

2. An appellate court will not determine the terms of a judgment on controverted or unsupported claims of the parties to the action but must assume the journal entry of judgment, when signed by the judge of the court below and approved by the attorneys for the respective parties, correctly reflects the judgment rendered and the facts and proceedings therein recited.

3. Within the exception provided in G.S.1957 Supp. 60-3314a, an appeal to the supreme court shall be perfected within two months from the date of the judgment or order from which the appeal is taken (G.S.1949, 60-3309). Following Allbritten v. National Acceptance Co., 183 Kan. 5, 325 P.2d 40.

4. The record in an action involving a railroad crossing accident examined and held that, under the circumstances set forth in the opinion, a motion for a new trial was neither necessary, proper nor essential to a review of the order sustaining a demurrer to the plaintiff's evidence or the judgment rendered pursuant thereto; hence the filing of such motion did not extend the time for appeal from either the order or the judgment.

Elisha Scott, Topeka, argued the cause, and Samuel C. Jackson, John J. Scott and Charles S. Scott, Topeka, were with him on the briefs for appellant.

Charles S. Fisher, Jr., Topeka, argued the cause, and T. M. Lillard, O. B. Eidson, Philip H. Lewis, James W. Porter and E. Gene McKinney, Topeka, were with him on the briefs for appellee.

PARKER, Chief Justice.

This was an action to recover damages for personal injuries resulting from a collision between plaintiff's motor vehicle and one of defendant's trains at a railroad crossing.

Plaintiff commenced the action by filing a petition setting forth his version of the conditions under which the collision occurred, alleging that such collision was due to the defendant's negligent operation of its train, and claiming damages for medical expense, loss of work, and physical pain and suffering in a sizable sum. Defendant answered in due course denying negligence as alleged in the petition, asserting that any injuries plaintiff had received or sustained as the result of a collision were solely occasioned by his own negligence, and praying that it recover judgment for costs.

With issues joined as just related and as the trial was about to commence plaintiff requested leave to file a reply, to which we will presently make further reference. Thereafter, and on October 16, 1957, the trial proceeded and at the close of plaintiff's evidence defendant demurred thereto on grounds such evidence (1) failed to show facts sufficient to constitute a cause of action against it and (2) showed plaintiff was guilty of contributory negligence as a matter of law. On the same date the trial court sustained the demurrer and rendered judgment in favor of defendant and against the plaintiff for costs. Two days after rendition of the judgment plaintiff filed a motion for a new trial. Five grounds of this motion were based on errors on the part of the trial court in sustaining the demurrer and rendering the judgment indicated. The sixth charges that the court erred in denying plaintiff to allege last clear chance in his reply to the defendant's answer. The motion for a new trial was overruled by the trial court on January 10, 1958. Thereafter, and on January 13, 1958, plaintiff perfected this appeal under a notice reciting that he was appealing from the ruling of the trial court denying him the right to plead the last clear chance doctrine in his reply to defendant's answer; from the judgment made and entered against him on October 15, 1957 (actually October 16, 1957); and from the order overruling his motion for a new trial on January 10, 1958.

Before proceeding further we are required to dispose of a jurisdictional question. It is raised by a motion to dismiss the appeal wherein the appellee challenges the jurisdiction of this court to hear the appeal because it was not timely perfected. Summarized, the grounds of such motion are that the court has no jurisdiction to hear and determine the appeal and it must be dismissed because no appeal was perfected for more than two months after the trial court's final order sustaining appellee's demurrer to appellant's evidence and the rendition of the judgment, that the motion for a new trial was not necessary to preserve or protect the appellant's right of appeal therefrom, and that the filing of such motion did not, nor does not, extend the time for appeal as prescribed by G.S.1949, 60-3309.

Inasmuch as it is clear, in fact conceded, no attempt was made to appeal from the demurrer to the evidence and the judgment rendered pursuant to that ruling within two months as required by G.S.1949, 60-3309, it appears the controlling question raised by the motion now under consideration is whether the filing by appellant of his motion for a new trial extended the time for appeal under G.S.1957 Supp. 60-3314a, providing that when an appeal has been timely perfected the fact that some ruling of which the appealing party complains was made more than two months before he...