The Chicago v. Nichols

• Citation: 133 Kan. 480,300 P. 1064
• Decision Date: 03 July 1931
• Docket Number: 29,997
• Court: United States State Supreme Court of Kansas
• Parties: THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant, v. D. J. NICHOLS, Individually and as County Treasurer of Jewell County; CHARLES E. SWEET et al., Individually and as the Board of Rural High-school District No. 5, and RURAL HIGH-SCHOOL DISTRICT No. 5, in Jewell County, Appellees

300 P. 1064

133 Kan. 480

THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant, v. D. J. NICHOLS, Individually and as County Treasurer of Jewell County; CHARLES E. SWEET et al., Individually and as the Board of Rural High-school District No. 5, and RURAL HIGH-SCHOOL DISTRICT No. 5, in Jewell County, Appellees

No. 29,997

Supreme Court of Kansas

July 3, 1931

Decided July, 1931.

Appeal from Jewell district court; WILLIAM R. MITCHELL, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

APPEAL AND ERROR--Judgment--Duty of Lower Court to Follow Mandate. In an action to recover taxes paid under protest, and under the facts as stated in the opinion, it is held error for the trial court to overrule a motion for a judgment and proceedings in accordance with the mandate of this court.

Luther Burns, J. E. DuMars, both of Topeka, and R. W. Turner, of Mankato, for the appellant.

D. M McCarthy and L. E. Weltmer, both of Mankato, for the appellees.

OPINION

HARVEY, J.:

This is an appeal from an order of the district court entering a mandate from this court and from an order overruling plaintiff's motion for judgment in accordance with the mandate, and to have entered an order sustaining plaintiff's demurrer to defendants' answer, and requesting the court to render judgment in favor of plaintiff as prayed for in its petition.

Originally the action was one to recover taxes for rural high-school district purposes paid by plaintiff under protest. The rural high-school districts had levied a tax of eight mills for general purposes. Plaintiff contended that six mills was all that the school district could lawfully levy. Plaintiff paid its taxes under protest and brought this action to recover the amount of the two mills alleged by plaintiff to have been unlawfully levied for general purposes. Defendants answered, setting up the statute under which they claimed they were authorized to make the levy which was made. Plaintiff demurred to the answer. The demurrer was overruled. Plaintiff appealed. This court, in an opinion reported in 130 Kan. 509, 287 P. 262, analyzed the statutes under which defendants claimed the levy was made, and, having fully considered the case, concluded:

"The defendant school district did not have the right to levy more than the six mills for general purposes. Plaintiff is entitled to recover the excess levy to the amount of two mills. . . . The cause is reversed with instructions to the trial court to sustain the demurrer to defendants' answer and for further proceedings in accordance with this opinion." (p. 515.)

The mandate from this court reached the clerk of the district court on May 29, 1930. On May 31, 1930, the judge of the district court entered upon the trial docket of the court the following: "May 31, 1930, mandate entered. Judgment for defendants for costs."

That was the last day of the March, 1930, term of court. The June term of court convened June 2, 1930, and the November term convened November 10, 1930. On November 17, 1930, plaintiff filed in the district court its motion for--

". . . the court to proceed in accordance with the judgment of the supreme court of Kansas in this cause and enter an order sustaining plaintiff's demurrer to defendants' answer, and to render judgment in favor of the plaintiff in accordance with the prayer of its petition herein."

That motion came on for hearing on November 21, 1930, and after argument of counsel the court entered on its docket:

"Motion filed November 17 is sustained by a nunc pro tunc order sustaining the demurrer to the answer of the defendants and correcting the apparent error of judgment for defendants for costs which was intended and should be judgment against defendants for costs. Motion overruled as to other parts."

The court refused to enter judgment for plaintiff for the recovery of the two mills excessive taxation, amounting to $ 659.23, on the ground that no request was made by plaintiff for such judgment until it filed its motion of November 17 and for the further reason that the cause was not continued at the March nor at the June, 1930, term of court, for which reason the court had...