Wilhite v. Judy
| Decision Date | 06 May 1933 |
| Docket Number | 31099. |
| Citation | 137 Kan. 589,21 P.2d 317 |
| Parties | WILHITE v. JUDY et al. [*] |
| Court | Kansas Supreme Court |
Syllabus by the Court.
One acquiescing in judgment imposing fine by causing payment thereof is not thereafter entitled to appeal therefrom.
One who acquiesces in a judgment by causing the payment of the same is not thereafter entitled to an appeal therefrom.
Appeal from District Court, Wyandotte County, Division No. 4; Charles A. Miller, Judge.
Action by David W. Wilhite against Lee Judy and another. From an adverse judgment, plaintiff appeals.
David W. Wilhite, of Kansas City, Mo., in pro per.
Alton H. Skinner, George H. West, John C. O'Brien, James K Cubbison, and William H. Towers, all of Kansas City, for appellees.
David W. Wilhite brought this action against Lee Judy, police judge, and Bina S. Quick, as clerk of the police court, to compel defendants to accept and to prove an appeal bond in an attempted appeal from a judgment of the police court. It was determined that plaintiff was not entitled to the writ, and plaintiff appeals from the judgment of the district court.
Plaintiff was arrested for violation of a traffic ordinance of the city in driving through a stop sign on the street, and he then put up a cash bond of $7.50 for his appearance in police court the following morning. He did appear, and the trial resulted in his conviction and a fine of $3.50 was adjudged against him. After which he left the courtroom without taking any action. He had authorized the chief of police that in case he was convicted the officer should take the amount of his fine and costs out of the cash bond he had posted when arrested. The following is a copy of the written authority:
The chief of police, in accordance with the authority given, took the money deposited and placed it with the city treasurer, it being the duty of the chief of police to make daily returns of all fines paid by offenders. Three days later Wilhite appeared and presented to the police court an appeal bond and asked to have it accepted and approved; but the fine having been paid, the judgment discharged, and the money placed with the city treasurer, the court denied the application. Wilhite then brought this mandamus action in the district court to compel the approval of the appeal bond presented, but the district court refused to grant the writ, and this appeal followed.
When the adjudged fine had been paid as the plaintiff directed the judgment was satisfied and discharged and the prosecution effectually ended. The payment constituted an acquiescence of the judgment and necessarily defeats an appeal. The plaintiff states that immediately after the conviction he applied in the city clerk's office for a blank appeal bond and was told he would have to wait until court, then sitting, was over. He did not prepare and present a bond and did not tender an appeal bond until three days later when the fine had been paid out of the deposit as he had directed. ...
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Paul v. Western Distributing Co.
...of the homily that one cannot eat his cake and have it." 131 Kan. 512, page 515, 292 P. 750, 751. In the case of Wilhite v. Judy, 137 Kan. 589, 21 P.2d 317, plaintiff was arrested for a traffic violation and posted $7.50 bond. He was convicted and fined $3.50. He had authorized the chief of......
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...against him, is clearly for his benefit and such right may be waived by him through acquiescence in the judgment (Wilhite v. Judy, 137 Kan. 589, 590, 21 P.2d 317; In re Bair, 166 Kan. 228, 199 P.2d 807; State v. Morse, 191 Kan. 328, 330, 380 P.2d 310), or failure to perfect the appeal in th......
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Miltimore v. City of Augusta
... ... of the award and thus utterly defeat his appeal. Hyland ... v. Hogue, 131 Kan. 512, 292 P. 750; Wilhite v ... Judy, 137 Kan. 589, 21 P.2d 317; Clothier v ... Wallace, 137 Kan. 928, 22 P.2d 462. In Paulsen v ... McCormack, 133 Kan. 523, 526, 1 P.2d ... ...
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...with his appeal. Miltimore v. City of Augusta, 140 Kan. 520, 38 P.2d 675; Hyland v. Hogue, 131 Kan. 512, 292 P. 750; Wilhite v. Judy, 137 Kan. 589, 21 P.2d 317; and Clothier v. Wallace, 137 Kan. 928, 22 P.2d Under the law as it then existed, the property owner was entitled to interest on th......