Urban Renewal Agency of Colby v. Church of Christ, 46637

Decision Date07 April 1973
Docket NumberNo. 46637,46637
Citation211 Kan. 705,508 P.2d 1227
PartiesThe URBAN RENEWAL AGENCY OF COLBY, Kansas, Appellee, v. The CHURCH OF CHRIST et al., Jack Reed, Jr., Appellants.
CourtKansas Supreme Court
Syllabus by the Court

1. For the purpose of computing the parties' appeal time the filing of the appraisers' report under K.S.A.1972 Supp. 26-505 is effective on the date fixed for such filing by the district judge and set forth in the notice of hearing required by K.S.A. 26-506, regardless of the date such report is actually delivered to the clerk of the court.

2. Under K.S.A. 60-258, a judgment rendered by a district court without a jury is not 'entered' until there is either a journal entry filed or an entry in the appearance docket made by the clerk at the direction of the court.

3. Where no judgment has been entered pursuant to K.S.A. 60-258, the doctrine of res judicata is inapplicable.

4. As a general rule questions of law must be determined by the court, unlimited by agreement of the litigants, and their stipulations as to what the law is are ineffective to bind the court.

5. Where the facts are undisputed, the question of whether an appeal is timely is an issue of law for determination by the court alone, without regard to the concessions of counsel.

6. In a condemnation case the record is examined and it is held that the trial court erred in dismissing the landowner's appeal from the appraisers' award and in refusing to reconsider and reinstate it on request.

Robert J. Lewis, Jr., Lewis, Lewis & Beims, Atwood, argued the cause, and H. Scott Beims, Atwood, was with him on the brief for appellants.

Leon E. Roulier, Colby, was on the brief for appellee.

FOTH, Commissioner:

This is an appeal from an order dismissing a landowner's appeal from the appraisers' award in a condemnation proceeding. The ultimate issue is whether appellant's notice of appeal from the appraisers' award was timely filed; to determine this we must first decide when an appraiser's report is 'filed' under our eminent domain statutes so as to start a landowner's appeal time running. Subsidiary issues involve when a judgment is 'entered' for purposes of the doctrine of res judicata, and whether an erroneous admission by a landowner's attorney that his notice of appeal was out of time is binding on his client in subsequent proceedings.

In 1970 the appellant, Jack Reed, Jr., was the owner of two tracts of land coveted by the appellee, the Urban Renewal Agency of Colby, Kansas (the 'Agency'). The Agency's advances were regularly repulsed, and in September the Agency instituted condemnation proceedings. After hearings at which appellant participated the district judge made the requisite findings of power and necessity under K.S.A. 26-504 and appointed appraisers. They were required by the order appointing them to file their report 'on November 24, 1970.'

Notice of the public hearing on their appraisal was given by publication and by mailing as required by K.S.A. 26-506(a). The notice was substantially in the statutory form, as prescribed by K.S.A. 26-506(b), and included the following information:

'Such hearing will commence at 10:00 o'clock a.m. on the 19th day of November, 1970, at the Court Room in Colby, Kansas, without further notice. Any party may present either oral or written testimony at such hearing.

'You are further notified that the Court has set the 24th day of November, 1970, for the filing of the awards of these appraisers with the Clerk of the District Court, and any party dissatisfied with the award may appeal therefrom as by law permitted within thirty (30) days from the date of filing.'

The appraisers met on November 19, as the notice said they would, and agreed upon their award for appellant's land. However, they lodged their report to that effect with the clerk of the court the same day, instead of waiting until November 24, the date fixed by the judge and recited as the filing date in the notice of hearing.

Appellant, who had been fighting the condemnation all the way, now sought counsel from the law firm of Zuspann, Soward and Whalen, of Goodland. That firm prepared and, on December 23, filed on appellant's behalf a notice of appeal from the appraisers' award.

Under K.S.A. (now 1972 Supp.) 26-508 any party dissatisfied with the award of the appraisers may secure review by filing a notice of appeal 'within thirty (30) days after the filing of the appraisers' report.' As may readily be seen, if the 'filing' of the appraisers' report took place on November 19, the date it was delivered to the clerk, appellant's time to file his notice of appeal expired December 19, and he was out of time. If, on the other hand, the 'filing' is deemed to have taken place on November 24, the date fixed by the judge for that purpose in the order appointing the appraisers and in the notice of hearing officially published and mailed to appellant, then his last day to file was December 24, and his notice of December 23 was timely.

We have not had occasion to consider this question since our present 'eminent domain procedure act' was enacted in 1963 (Laws 1963, ch. 234, § 1-16). Under former G.S.1949, 26-102 as amended, and its predecessors, it was clear that the landowner's appeal time ran from 'the date the appraisement is filed with the clerk of the district court.' (State Highway Commission v. Griffin, 132 Kan. 153, 294 P. 872, Syl. 1.) Other condemnation statutes prescribed other appeal-time-starting events, such as the filing of the commissioners' report with the city clerk under former G.S.1949, 26-202 and 26-205.

Those sections, now repealed, were recognized in 1934 as having been 'enacted to supersede and unify a number of miscellaneous statutes dealing with this subject.' (Miltimore v. City of Augusta, 140 Kan. 520, 522, 38 P.2d 675, 676.) At the same time it was even then recognized 'That there is yet much to be done to clarify and codify the law of eminent domain . . .' (Ibid.) The 1963 act was an effort to do just that. 'By this Act the Legislature intended to replace a dozen or more different procedures used in Kansas with one uniform procedure.' (Beatty, The Eminent Domain Procedure Act, 32 J.B.A.K. 125 (1963). See also, Spring, Comments on Practice and Procedure in Eminent Domain, 35 J.K.B.A. 7, 8 (1966).) The sixteen new sections now constituting the procedure act itself were followed by eighty-six amendments to existing statutes, all designed to conform the eminent domain power of almost all public and private entities with the new procedure.

As part of this massive effort toward clarity, simplicity and uniformity we find for the first time a statutory requirement that affected landowners be notified not only of the meeting of the appraisers but of the date fixed by the judge for the filing of the appraisers' report. Landowners must also be advised of their right to appeal, and how and when they may exercise that right. These notice requirements were not merely set forth in the statute but incorporated in a statutorily prescribed form. We take this as indicating their importance in the statutory scheme.

K.S.A. 26-504 states that the order appointing appraisers 'shall also fix the time for the filing of the appraisers' report . . ..' It does not say the order shall fix the time 'within which' the report is to be filed, nor 'the last day' for such filing. Accordingly, the order here said the report should be filed 'on' November 24, not 'on or before' November 24. The same observations apply to the statutory form of notice and the notice actually employed. Both fix a date certain for filing, rather than a final deadline for filing.

What would the average landowner glean from reading the notice given appellant here? He would find that the appraisers would meet and determine his award on November 19, that they were required by the court to file their report on November 24, and that he had thirty days after that filing to take his appeal. He would, we think, inevitably conclude that his last day to appeal was December 24.

That would be the natural reading of the notice; the same construction might even, as here, suggest itself to experienced counsel. We think further that such must have been the legislative intent, for otherwise the required order of the court fixing the filing date and the statutory notice incorporating it would both be meaningless. The effect of both could be nullified at the whim of the appraisers, by their simply 'filing' the report whenever it suited them. We cannot believe the legislature intended to entrust them with any such power to affect the substantial rights of the parties.

We therefore hold that for the purpose of computing the parties' appeal time the filing of the appraisers' report under K.S.A.1972 Supp. 26-505 is effective on the date fixed by the judge for such filing and set forth in the notice of hearing required by K.S.A. 26-506, regardless of the date such report is actually delivered to the clerk of the court.

The situation is muddied somewhat by a 1968 amendment to 26-505. That enactment (Laws 1968, ch. 138, § 1) added a requirement that upon filing their report the appraisers shall notify the condemner, which shall in turn mail notice to the affected landowners. It may be that this provision was intended to remedy a conceived deficiency in the statutory scheme-if early filing could in fact cut short a landowner's appeal time, lack of notice of such filing would raise obvious due process questions. Cf. Walker v. Hutchinson City, 352 U.S. 112, 1 L.Ed.2d 178, 77 S.Ct. 200. If such was the legislative motivation, however, the act would seem superfluous in view of what we see as a perfectly harmonious scheme of 'court order and notice thereof' in the statutes as they read before the 1968 amendment, and which was unaltered by the amendment. It seems unlikely that an alteration of a statutorily and judicially established timetable in mid-proceedings was intended....

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    • United States
    • Kansas Court of Appeals
    • March 12, 2021
    ...on the stipulation that Rita's domicile was in Kansas rather than deciding the issue independently. See Urban Renewal Agency v. Reed , 211 Kan. 705, 712, 508 P.2d 1227 (1973) (reversing district court for basing its holding on an erroneous stipulation of the law between the parties). E. The......
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    • Kansas Supreme Court
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    ...legal findings. We do not permit parties to stipulate “ ‘as to the legal conclusions from admitted facts.’ ” Urban Renewal Agency v. Reed, 211 Kan. 705, 712, 508 P.2d 1227 (1973) (quoting 50 Am. Jur., Stipulations § 5 ). The district court's finding that the defense was stipulating to the c......
  • Wolfe Elec., Inc. v. Duckworth
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    ...abandonment, we nevertheless must address the accuracy of the purported legal basis of its concession. See Urban Renewal Agency v. Reed, 211 Kan. 705, 711–12, 508 P.2d 1227 (1973) (stating that generally questions of law must be determined by the court, unlimited by agreement of the litigan......
  • State v. Gordon, 48339
    • United States
    • Kansas Supreme Court
    • January 7, 1977
    ...The Supreme Court is not bound by an erroneous stipulation of law. (State v. Gergory, 218 Kan. 180, 187, 542 P.2d 1051; Unban Renewal Agency v. Reed, 211 Kan. 705, Syl. 4, 508 P.2d 1227; In re Estate of Maguire, 204 Kan. 686, Syl. 5, 466 P.2d 358; and Beams v. Werth, 200 Kan. 532, Syl. 10, ......
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1 books & journal articles
  • Education of Attorneys on Appeal And/or Cross Appeal
    • United States
    • Kansas Bar Association KBA Bar Journal No. 78-3, March 2009
    • Invalid date
    ...(1992). [37] State ex rel. Grassie v. Masterson, 221 Kan. 540, 551, 561 P.2d 796 (1977); Urban Renewal Agency v. Reed, 211 Kan. 705, 712, 508 P.2d 1227 (1973); McVey v. Pfingston, 3 Kan. App. 2d 276, 281, 593 P2d 1014 (1979). [39] Id., 128 S. Ct. at 2564. [40] Id., 128 S. Ct. at 2570, n.8. ......

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