Thompson v. Amis

• Decision Date: 22 January 1972
• Docket Number: No. 46487,46487
• Citation: 208 Kan. 658,493 P.2d 1259
• Parties: Lorene THOMPSON, Appellee-Cross-Appellant, v. George C. AMIS et al., Appellants-Cross-Appellees.
• Court: Kansas Supreme Court

Page 1259

493 P.2d 1259

208 Kan. 658

Lorene THOMPSON, Appellee-Cross-Appellant, v. George C. AMIS et al., Appellants-Cross-Appellees.

No. 46487.

Supreme Court of Kansas.

Jan. 22, 1972.

Syllabus by the Court

1. Ordinarily, trial errors in which a party acquiesces, or encourages the district court to make, cannot be raised on appeal, but the rule does not apply where the error involves jurisdiction of the subject matter.

2. Where the district court had no jurisdiction of the subject matter, this court does not acquire jurisdiction of the subject matter by appeal from a judgment of the district court.

3. This court will raise the question of jurisdiction on its own motion.

4. District courts are expressly created by the Constitution of Kansas, and are given only such jurisdiction as may be provided by the Legislature.

5. Where a district court has appellate jurisdiction to review the decisions of a quasi-judicial body, it has no jurisdiction in an independent equitable action to review alleged errors.

6. The term 'quasi-judicial' is applied to administrative boards or officers empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of a judicial nature.

7. The Civil Service Board of Kansas exercises quasi-judicial functions and if a party is aggrieved by its order, the remedy is by appeal pursuant to K.S.A. 60-2101(a), which remedy is exclusive.

Franklin R. Theis, Asst. Atty. Gen., argued the cause, and Woody D. Smith, Topeka, Dept. of Social Welfare, and Vern Miller, Atty. Gen., were with him on the brief for appellants-cross-appellees.

Mary Schowengerdt, of Irwin, Irwin & Schowengerdt, Topeka, argued the cause, and Robert R. Irwin, Topeka, was with her on the brief for appellee-cross-appellant.

FATZER, Chief Justice.

This appeal stems from a controversy over the discharge of a classified civil service employee.

The question immediately before the court is one of procedure involving jurisdiction. The facts material to the disposition of that question are first presented.

On August 1, 1968, the plaintiff, Lorene Thompson, was promoted to the position of Supervisor of Vocational Rehabilitation for the Topeka State Hospital, and as of November 30, 1968, she was granted permanent status. On February 17, 1969, she was orally dismissed from her position by the Acting Director of the Division of Vocational Rehabilitation of the State of Kansas. The first written notice of her oral dismissal was given by letter dated February 19, 1969.

The plaintiff gave notice of her intention to appeal her dismissal by a letter dated February 20, 1969, directed to the Chairman of the Civil Service Board of the State of Kansas (the Board), requesting a hearing with respect to the dismissal. The Board, on March 27, 1969, and again on April 3, 1969, conducted a hearing in the matter. On April 3, 1969, the Board announced its decision which was made a part of its minutes, and reads:

"The Hearing for E. Lorene Thompson, Vocational Rehabilitation Supervisor, Department of Social Welfare, was resumed at 10:30 a. m. At the conclusion of the hearing, it was the decision of the Board that the action of the appointing authority in dismissing Miss Thompson be sustained. The Personnel Director was directed to place the name of Miss Thompson on the eligible register for Vocational Rehabilitation Counselor for a period of one year."

The secretary of the Board directed a letter to the plaintiff reporting its decision. Thereafter, and on April 3, 1970, the plaintiff delivered a letter to the Director of the personnel division requesting that her term of eligibility be extended for a period of one year pursuant to K.S.A. 75-2942(2). She also filed a motion for rehearing and reconsideration. The Board's decision on that motion was reported in its minutes of May 11, 1970, and reads:

"The Board reviewed the request for re-hearing for Lorene Thompson requested by Mary Schowengerdt, attorney for Miss Thompson. It was the decision of the Board that it does not have jurisdiction over the matter."

Plaintiff's counsel was informed of the Board's decision by letter dated May 12, 1970. On May 21, 1970, the plaintiff filed two cases in the district court seeking relief from the decisions of the Board-one was a direct appeal; the other was an action in equity.

On June 3, 1970, the Board filed a motion to dismiss the action in equity on the ground it was immune from actions except on its contracts, and that plaintiff's petition failed to allege the purported cause of action was based on contract. The Board also filed a motion to dismiss the appeal for the reason the functions of the Board were administrative, not judicial in character, and, therefore, not subject to review under K.S.A. 60-2101(a).

On June 24, 1970, the plaintiff filed a motion for determination of the appropriate remedy-direct appeal, or action in equity.

At the hearing on the motion for the determination of the proper remedy, counsel for all parties agreed that the remedy was an action in equity for relief in the form of mandamus, and that the appeal statute (K.S.A. 60-2101(a)) had no application. The court then ruled:

'All right. The motion of the plaintiff for a determination of an appropriate remedy then is sustained and it is determined that the proper method of attacking the legality or the propriety or correctness of a decision of the State Civil Service Board is through an independent action in equity which in this case has been brought in Case No. 113,185. But the Court is not at this time determining the correctness of the remedy or the appropriateness of the facts alleged in the petition but only the fact that the Court does have jurisdiction in that case to consider the matters of dispute between the plaintiff and the State Board of Social Welfare. Now, do you have anything else to present on your motion in Case No. 113,185?'

Thereafter, the plaintiff filed a motion for judgment on the pleadings in the equity case. The motion was sustained, the court finding that plaintiff was entitled to be restored to her position as Vocational Rehabilitation Supervisor with the State Department of Social Welfare, and that she should be reimbursed for the salary which she had lost because of her wrongful dismissal.

Following a motion for rehearing and a motion by plaintiff for attorney fees, an order of summary judgment was entered on June 30, 1971, placing in the judgment the findings above mentioned, but denying plaintiff attorney fees.

The Board, the Department of Administration, and the Board of Social Welfare, all statutory agencies of the state of Kansas, appealed from the order reinstating the plaintiff to her position of Vocational Rehabilitation Supervisor and reimbursing her for lost salary. The plaintiff cross-appealed from the order denying her attorney fees.

The appellants contend that an appeal pursuant to K.S.A. 60-2101(a) from the Board's decision of April 3, 1969, was the only procedural remedy available to the appellee.

Before considering this question, we are met with the appellee's contention the appellants took no appeal from the court's order adjudging that the appellee's remedy was by an equitable action and not by appeal under K.S.A. 60-2101(a), but actually encouraged the district court to make such an order and they are now foreclosed from raising such an issue.

Ordinarily, trial errors in which a party acquiesces or encourages the district court to make cannot be raised on appeal. A party should not be permitted to assume an attitude in this court inconsistent with that taken in the court below. (Brown v. East Side National Bank, 196 Kan. 372, 376, 411 P.2d 605; Potwin State Bank v. J. B. Houston & Son Lumber Co. (Ward), 183 Kan. 475, 327 P.2d 1091, 80 A.L.R.2d 166.) However, the rule above stated does not apply where the question is one of jurisdiction of the subject matter. If the district court had no jurisdiction, then this court has no jurisdiction. In Knowing v. Douglas County Kaw Drainage Dist., 167 Kan. 387, 207 P.2d 457, we held:

'Where the district court had no jurisdiction of the subject matter of an appeal to it, this court does not acquire such jurisdiction by an appeal from a ruling of the district court.' (Syl. 2.)

This court will raise the jurisdictional question on its own motion. (Materi v. Spurrier, 192 Kan. 291, 387 P.2d 221; Bammes v. Viking Manufacturing Co., 192 Kan. 616, 389 P.2d 828; Hotchkiss v. White, 191 Kan. 534, 538, 382 P.2d 325; Lira v. Billings, 196 Kan. 726, 414 P.2d 13.)

The appellants argue the issue before us is one of jurisdiction. We agree. The district courts are expressly created by the Constitution of the state of Kansas and are given only such jurisdiction as may be provided by the Legislature. (Art. 3, § 6; State v. Jack, 69 Kan. 387, 392, 76 P. 911, affirmed 199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234; Cities of McPherson v. State Corporation Commission, 174 Kan. 407, 411, 257 P.2d 123.) If the district court had no appellate jurisdiction over the decision of the Board, then it had equitable jurisdiction to determine whether the Board's acts were illegal, fraudulent, or oppressive. (Gray v. Jenkins, 183 Kan. 251, 326 P.2d 319.) If the district court had appellate jurisdiction, then it had no jurisdiction in an independent equitable action to review alleged errors of the Board. (Pelican Transfer & Storage v. Kansas Corporation Commission, 195 Kan. 76, 402 P.2d 762; Neeley v. Board of Trustees, Policemen's & Firemen's Retirement System, 205 Kan. 780, 473 P.2d 72; Neagle v. Brooks, 203 Kan. 323, 454 P.2d 544.) See, also, Northern Natural Gas Company v. Dwyer, 208 Kan. 337, 492 P.2d 147, and Powers v. State Department of Social Welfare, 208 Kan. 605, 493 P.2d 590, this day decided.

The appellee relies heavily on Gray, supra, where we said that the Board acts quasi-judicially, but that no statutory provision for appeal to the courts is...