The City of Kansas City v. Ux

Citation75 Kan. 23,88 P. 539
Decision Date05 January 1907
Docket Number14,737
PartiesTHE CITY OF KANSAS CITY v. EDWARD DORE et ux
CourtUnited States State Supreme Court of Kansas

Decided January, 1907.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIMITATION OF ACTIONS--Proceeding in Error--Time of Filing Case-made. Where a statute which gives a party one year after final judgment to perfect his appeal to the supreme court is repealed and amended by limiting the time within which such proceeding must be commenced, which amendment is enacted after the defeated party has had his case-made settled, the case-made must be filed before the expiration of the time limit in the amendment or this court cannot assume jurisdiction.

2. LIMITATION OF ACTIONS--Prerequisites to the Beginning of a Proceeding in Error. A proceeding to reverse a judgment of the trial court is not commenced in this court within the provisions of section 7342 of the General Statutes of 1901 until the petition in error, with the case-made or transcript attached, is filed with the clerk, together with a precipe for summons.

Ralph Nelson, city attorney, and Edwin S. McAnany, city counselor for plaintiff in error.

Angevine & Cubbison, for defendants in error.

OPINION

GREENE, J.:

Edward Dore and his wife, Ellen Dore, recovered a judgment in the court of common pleas of Wyandotte county against the city of Kansas City, Kan., for injuries resulting to them by the death of their minor son, Edward Dore. It was charged that the death was occasioned by the city in negligently maintaining a dangerously deep pond, attractive to boys adjacent to one of the thoroughfares in the city, and that while playing therein Edward Dore was drowned.

The plaintiff in error had one year after the rendition of the final judgment to commence proceedings in this court to reverse, vacate or modify the judgment under section 5042 of the General Statutes of 1901. On March 15, 1905, chapter 321 of the Laws of 1905 became effective. This chapter amended and repealed section 5042 of the General Statutes of 1901 by limiting the time within which an appeal could be taken to reverse, vacate or modify a money judgment against a municipal corporation to thirty days from the settlement of the case-made or ninety days from the entry of the judgment. The final judgment was rendered December 13, 1904. The case-made was settled February 3, 1905, and filed in this court December 9, 1905.

The defendants in error challenge the jurisdiction of this court to consider the merits of the controversy for the reason that the case-made was not filed within the time limited by chapter 321 of the Laws of 1905. The right to an appeal is neither a vested nor a constitutional right. It is purely statutory, and may be limited by the legislature to any class of cases or in any manner, or may be entirely withdrawn. The repeal of section 5042 left the plaintiff in error without any right of appeal except that provided in the amendment. This question was before this court in the case of Coal Co. v. Barber, 47 Kan. 29, 27 P. 114, where it was said:

"A party who has been defeated in a civil action in the district court has no vested right to an appeal or to the prosecution of proceedings in error in the supreme court to review the rulings or judgment of the district court before he has filed his appeal or proceedings in the supreme court; and an act of the legislature taking away the privilege of appeal or the permission to prosecute proceedings in error before the appeal...

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14 cases
  • Polzin v. National Co-op. Refinery Ass'n
    • United States
    • Kansas Supreme Court
    • June 9, 1956
    ...this court has only such appellate jurisdiction as is conferred by statute pursuant to Art. 3, § 3 of the Constitution, Kansas City v. Dore, 75 Kan. 23, 88 P. 539; Allen v. Glitten, 156 Kan. 550, 134 P.2d 631; Eikelberger v. Saline County Com'rs, supra; Williams v. Seymour Packing Co., 174 ......
  • State v. Henning
    • United States
    • Kansas Court of Appeals
    • August 31, 1979
    ...completely. It lies within the legislative domain to determine from what orders or judgments an appeal may be taken. (Kansas City v. Dore, 75 Kan. 23, 88 P. 539; City of Hutchinson v. Wagoner, 163 Kan. 735, 186 P.2d 243; Murrow v. Powell, 167 Kan. 283, 205 P.2d 1193; Evans v. George, (162 K......
  • Olathe Community Hosp. v. Kansas Corp. Com'n, 54899
    • United States
    • Kansas Supreme Court
    • October 22, 1982
    ...Hospital and the KDHE rely on three early cases from this court: Coal Co. v. Barber, 47 Kan. 29, 27 P. 114 (1891); Kansas City v. Dore, 75 Kan. 23, 88 P. 539 (1907); and Bowen v. Wilson, 93 Kan. 351, 144 P. 251 (1914), while the respondents rely upon Harder v. Towns, 1 Kan.App.2d 667, 573 P......
  • Waterman, In Interest of
    • United States
    • Kansas Supreme Court
    • July 14, 1973
    ...completely. It lies within the legislative domain to determine from what orders or judgments an appeal may be taken. (Kansas City v. Dore, 75 Kan. 23, 88 P. 539; City of Hutchinson v. Wagoner, 163 Kan. 735, 186 P.2d 243; Murrow v. Powell, 167 Kan. 283, 205 P.2d 1193; Evans v. George, An ana......
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