Township of Deerhead v. Fritz

• Decision Date: 08 June 1940
• Docket Number: 34760.
• Parties: DEERHEAD TP. v. FRITZ et al.
• Court: Kansas Supreme Court

102 P.2d 1035

152 Kan. 110

DEERHEAD TP. v. FRITZ et al.

No. 34760.

Supreme Court of Kansas

June 8, 1940

Syllabus by the Court.

Order sustaining motion for Judgment on the pleadings and opening statement could not be reviewed, where statement was not taken down and its substance was not shown by the record since an order or ruling of a trial court cannot be reviewed in absence of record on which such order or ruling was based.

Townships are "political subdivisions of the state," and as such are not liable in tort actions unless such liability is clearly imposed by statute.

Township was not liable to owner of realty through which road was being relocated, for loss of use of pasture on the realty because of the alleged culpable negligence of the township in throwing down and leaving open wire gates so that it was unsafe for owner of realty to place cattle in pasture.

1. An order or ruling of a trial court cannot be reviewed by this court in the absence of the record upon which such order or ruling was based.

2. Townships are political subdivisions of the state, and as such are not liable in actions for tort unless such liability is clearly imposed by statute.

3. The record is examined in an action wherein a township board was plaintiff and cross-defendant and no error found.

Appeal from District Court, Barber County; Clark A. Wallace, Judge.

Action by Deerhead Township, Barber County, against George Fritz and Ella M. Fritz to recover on an injunction bond, wherein the defendants filed a cross-petition. From an order sustaining a demurrer to the amended cross-petition and from an order sustaining plaintiff's motion for judgment on the pleadings and the opening statement of counsel for defendants, the defendants appeal.

Judgment affirmed.

Samuel Griffin, of Medicine Lodge, for appellants.

Wheat &amp Eggleston, of Medicine Lodge, for appellee.

HOCH Justice.

This was an action to recover on an injunction bond. The defendants filed a cross-petition alleging that an agreement had been made for a compromise settlement of the controversy involved in the injunction proceedings; that the plaintiff had broken the contract of settlement, and asking damages therefor. The case is here on appeal from an order sustaining a demurrer to the amended cross-petition and from an order sustaining plaintiff's motion for judgment on the pleadings and the opening statement of counsel for defendants.

George Fritz owned a lot of land in Deerhead Township, Barber County, Kansas. The township board began improvement of a winding road through the Fritz land which was largely pasture. Fritz obtained a temporary injunction restraining the township from entering upon his land and continuing the road work. He and his wife executed an injunction bond, in the sum of $100, to protect the township against damages in case it were finally shown that the injunction should not have been granted. Upon the trial of the action against the township, the injunction was dissolved, and Fritz appealed to this court on January 26 1937. Upon his own motion the appeal was dismissed on May 3, 1937. On July 26, 1937, the township brought the instant action to recover on the bond.

In his cross-petition Fritz alleged that in March 1937, he and the township board entered into an agreement to settle the controversy; that the agreement was that the road was to be re-located by the county engineer, the old road was to be vacated, the new road built, and the township board was to install automobile gates leading into the Fritz pasture "as soon as said road was re-located"; that Fritz was to circulate the petition required for re-location of the road and was to dismiss his appeal in the injunction case. Fritz then alleged that he had performed his part of the agreement, including dismissal of the appeal in the injunction proceeding; that the road had been relocated, but that the township board had failed to keep its agreement to put in the automobile gates "as soon as the road was re-located," "and did not do so until June 1937." He then alleged that "during said time, which covered a period of two and one-half months, the wire gates that were in, were thrown down and left open to such an extent that it was unsafe for defendant to place cattle in said pasture, and that by reason thereof said defendant was unable to use said pasture for a period of two and one-half months to his damage in the sum of $275" (italics ours). He further alleged that when the township board did put in the automobile gates, it used certain lumber on the premises belonging to him, and valued at $12. Judgment for $287 was asked against the township board.

Plaintiff's demurrer to the amended cross-petition having been sustained, the action proceeded on the question of defendant's liability on the bond. A demurrer to the answer having been overruled, plaintiff replied with a general denial, a jury was sworn in and opening statements made by both plaintiff and defendants. Following the opening statement by counsel for the defendants, the plaintiff moved for judgment on the opening statement and upon the pleadings. The court reserved its ruling upon the motion and the plaintiff introduced testimony showing expenditure of $125 for attorney's fees in the injunction action. After hearing argument on the motion in the absence of the jury, the court sustained the motion and entered judgment for $100 against the defendants, under their liability on the bond. Motion for a new trial was overruled.

We are met at the outset with the question of whether the amount of the judgment, being $100 and costs, is sufficient to give this court jurisdiction of the appeal. G.S.1935, 60-3303. It was argued that since there is also here an appeal involving the cross-petition which alleged breach of a compromise settlement of the injunction controversy, and which sought recovery of damages in the sum of $287, the appeal is not barred by the statute. It may be noted in passing that the cross-petition did not specifically...