Szoboszlay v. Glessner

• Decision Date: 10 June 1983
• Docket Number: No. 53627,53627
• Citation: 664 P.2d 1327,233 Kan. 475
• Parties: Bernd B. SZOBOSZLAY, Appellant, v. Mrs. GLESSNER, Appellee.
• Court: Kansas Supreme Court

Page 1327

664 P.2d 1327

233 Kan. 475

Bernd B. SZOBOSZLAY, Appellant, v. Mrs. GLESSNER, Appellee.

No. 53627.

Supreme Court of Kansas.

June 10, 1983.

Syllabus by the Court

1. The right to appeal in this state is neither a vested nor constitutional right,

but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases, or in any manner, or it may be withdrawn completely.

2. Various rules relating to statutory construction are stated and applied.

3. A party has 30 days to file an appeal from a judgment rendered in a small claims proceeding under K.S.A. 1982 Supp. 61-2709(a).

4. Where an appellant fails to substantially comply with the rules of the Supreme Court the appellee's remedy after an appeal is docketed is a motion in the appellate court to dismiss under Rule No. 5.05 for substantial failure to comply with the rules. Such a motion is addressed to the sound discretion of the appellate court.

5. In an appeal in a small claims proceeding taken pursuant to K.S.A. 1982 Supp. 61-2709(a) the trial court is required to award the successful appellee reasonable attorney fees incurred in the appeal.

6. A plaintiff is the successful party where he is substantially successful in his cause of action, although the judgment awarded him may have been reduced by an amount awarded the defendant on a counterclaim or on appeal.

Lawrence H. Vogel, of Vogel, Oleen & Kintner, Manhattan, was on brief for appellant.

S. Mark Edwards, of Hoover, Schermerhorn, Edwards & Pinaire, Junction City, was on brief for appellee.

SCHROEDER, Chief Justice:

This is an appeal by Bernd B. Szoboszlay (plaintiff-appellant) in an action brought under the Small Claims Procedure Act, K.S.A. 61-2701 et seq., against Mrs. Esta Glessner (defendant-appellee). The appellant contends the trial court erred in failing to award him attorney fees as provided by K.S.A. 1982 Supp. 61-2709 in an appeal taken by Mrs. Glessner from a judgment entered against her in the small claims action.

The facts pertinent to this appeal are brief and undisputed. On March 20, 1981, the appellant filed a small claims action against his landlord, Mrs. Glessner, for the return of his security deposit. A judgment of $150 was entered in favor of the appellant (tenant) by the district magistrate judge on April 7, 1981. Mrs. Glessner appealed to the district court pursuant to K.S.A. 1982 Supp. 61-2709(a) and counterclaimed for damages in the amount of $1,140. In his answer to the counterclaim the appellant prayed for reasonable attorney fees, return of his security deposit and damages under K.S.A. 1982 Supp. 58-2550(c) (Residential Landlord and Tenant Act). On July 29, 1981, Associate District Judge Melvin M. Gradert affirmed the judgment entered in the small claims proceeding, but modified the amount of the judgment by reducing it to $124.02 due to additional rent owed by the tenant in the amount of $25.98. No provision was made for attorney fees and the appellant (tenant) filed notice of appeal to the Court of Appeals with the clerk of the district court on August 27, 1981.

The appellant was issued an order by the Court of Appeals to show cause why the appeal should not be dismissed for lack of jurisdiction for failure to file the notice of appeal within the ten-day limit set forth in K.S.A. 61-2102(a) for appeals in limited action cases. The appellant responded that K.S.A. 1982 Supp. 61-2709(b) under the Small Claims Procedure Act provides that a decision of a district judge or associate district judge entered in a de novo appeal in a small claims proceeding may be appealed "in the manner provided by article 21 of chapter 60," which would allow 30 days to file a notice of appeal. The parties were directed to file briefs on the issue of jurisdiction which would be determined along with the merits. Due to the apparent conflict in the Code of Civil Procedure for Limited Actions regarding the time limit within which a notice of appeal to the appellate courts must be filed in limited action cases, this case was transferred to the Supreme Court pursuant to K.S.A. 20-3018(c).

Was this appeal timely filed under the applicable statute? The filing of a timely notice of appeal is jurisdictional. State v. Moses, 227 Kan. 400, Syl. p 8, 607 P.2d 477 (1980). While the question of jurisdiction was not raised by either party we have often held it is the duty of this court to raise the question of jurisdiction on its own motion, and where the record discloses a lack of jurisdiction it is the duty of this court to dismiss the appeal. In re K-Mart Corp., 232 Kan. 387, Syl. p 1, 654 P.2d 470 (1982); State v. Moses, 227 Kan. 400, Syl. p 7, 607 P.2d 477.

The issue of jurisdiction in this case arises by reason of two statutes contained in the Code of Civil Procedure for Limited Actions, found in chapter 61 of the Kansas Statutes Annotated, governing the time within which a notice of appeal must be filed. K.S.A. 61-2102, the general appeal provision for chapter 61 actions, provides:

"(a) All appeals from actions pursuant to this chapter shall be by notice of appeal specifying the order, ruling, decision or judgment complained of, and shall be filed with the clerk of the court from which the appeal is taken within ten (10) days after the entry of such order, ruling, decision or judgment...."

The statute governing appeals in actions under the Small Claims Procedure Act, K.S.A. 1982 Supp. 61-2709, reads in part:

"(a) An appeal may be taken from any judgment under the small claims procedure act. All appeals shall be by notice of appeal specifying the party or parties taking the appeal and the order, ruling, decision or judgment complained of and shall be filed with the clerk of the district court within 10 days after entry of judgment. All appeals shall be tried and determined de novo before a district judge or associate district judge, other than the judge from which the appeal is taken....

(b) Any order, ruling, decision or judgment rendered by a district judge or associate district judge on an appeal taken pursuant to subsection (a) may be appealed in the manner provided in article 21 of chapter 60 of the Kansas Statutes Annotated." (Emphasis added.)

K.S.A. 60-2103 provides that an appeal shall be taken within 30 days of the entry of judgment. Simply stated the issue is whether actions brought under the Small Claims Procedure Act are afforded the longer appeal time provided in article 21 of chapter 60 while appeals in other limited action cases are required to be filed within the shorter time set forth in 61-2102.

This court has recognized on numerous occasions that the right to an appeal in this state is neither a vested nor constitutional right, but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases, or in any manner, or it may be withdrawn completely. In re K-Mart Corp., 232 Kan. 387, Syl. p 2, 654 P.2d 477. The provisions of the pertinent statutes must be construed to determine which time limit set forth in those statutes for filing an appeal is applicable in the present case. In doing so we are mindful of the fundamental rule of statutory construction, to which all others are subordinate, that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. Kansas State Board of Healing Arts v. Dickerson, 229 Kan. 627, 630, 629 P.2d 187 (1981); In re Adoption of Trent, 229 Kan. 224, 228, 624 P.2d 433 (1981). The historical background and changes made in a statute are to be considered by the court in determining the legislative intent, and any changes and additions made in existing legislation raise a presumption that a change in meaning and effect was intended. Moore v. City of Lawrence, 232 Kan. 353, Syl. p 6, 654 P.2d 445 (1982). In order to ascertain the legislative intent, courts are not permitted to consider only an isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia. Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 648 P.2d 1143 (1982). When a statute is plain and unambiguous the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Randall v. Seemann, 228 Kan. 395, Syl. p 1, 613 P.2d 1376 (1980); Lakeview Gardens, Inc. v. State, ex rel. Schneider, 221 Kan. 211, Syl. p 2, 557 P.2d 1286 (1976).

Prior to its amendment, K.S.A. 61-2709 (Weeks) provided that an appeal could be taken from a judgment under the Small Claims Procedure Act "in the manner prescribed by the code of civil procedure for limited actions." The statute was amended in 1977 to overcome constitutional infirmities created by the unification of the district courts in 1976 where no provision existed for a hearing de novo in small claims proceedings in which the parties could be represented by counsel. See Heinemann, Legislation 1977, 46 J.K.B.A. 69, 90 (1977). The statute now provides a two-step appeal process in small claims actions. A judgment rendered in a small claims proceeding may first be appealed within ten days for a trial de novo before a different district judge or associate district judge. Under K.S.A. 1982 Supp. 61-2709(b) an appeal may then be taken to the appellate courts "in the manner provided in article 21 of chapter 60" from the judgment entered in the de novo adjudication.

The statute is couched in terms familiar to all lawyers and judges in this state and is not ambiguous. It is a fundamental principle of statutory construction that words in common usage are to be given their natural and ordinary meaning in arriving at the proper construction of a statute. Stephens v. Van Arsdale, 227 Kan. 676, 684, 608 P.2d 972 (1980); Lakeview Gardens, Inc. v. State, ex rel. Schneider, 221 Kan. at 214, 557 P.2d 1286. It has generally been recognized that the phrase "in the same manner" has a...