Zerger v. Stucky
| Decision Date | 23 January 1960 |
| Docket Number | No. 41654,41654 |
| Citation | 186 Kan. 142,348 P.2d 612 |
| Parties | Gerhard ZERGER, Appellant, v. Delorse STUCKY, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
It is the duty of an appellant to procure and file with the clerk of the district court an official transcript of such proceedings as is necessary for a review of the judgment rendered and sufficient to establish his position beyond question.
Evart Mills, McPherson, argued the cause and was on the brief, for appellant.
Jack O. Bowker, McPherson, argued the cause and was on the brief, for appellee.
This case arises out of an intersection collision and is an action to recover for damage to plaintiff's automobile and for temporary loss of use thereof, all in the amount of $689.33.
The jury returned a verdict for defendant and plaintiff has appealed.
At the outset, we are confronted with defendant's motion to dismiss the appeal because of plaintiff's failure to comply with the provisions of G.S.1949, 60-3311, relating to the procuring and filing of a transcript of the trial proceedings. On September 8, 1959, this motion was denied, with leave to renew at the hearing of the appeal on its merits. Defendant has renewed her motion.
From the very sketchy and meager record presented it appears that plaintiff's chief complaints center around the question of the exact point of the collision and the trial court's instructions defining an intersection. One of the grounds of plaintiff's motion for a new trial was that the verdict is contrary to the evidence, and the denial of that motion is specified as error.
The difficulty with plaintiff's position is that the 'transcript' procured by him not only was insufficient to enable defendant to prepare a counter abstract therefrom--but also, as abstracted, is insufficient to enable this court to review the proceedings below and the questions presented on appeal.
Questions concerning the application of the mentioned statute and the duty of an appellant thereunder with respect to the securing and filing of a transcript of trial proceedings have been before this court many times and under varying circumstances. We mention but a few of our decisions: Barker v. Chicago, R. I. & P. R. Co., 158 Kan. 549, 148 P.2d 493; Hodges v. Phoenix Mutual Life Ins. Co., 174 Kan. 282, 285, 286, 255 P.2d 627; Crowder v. Lindbergh, 175 Kan. 671, 265 P.2d 851; Matthews v. Jackson, 176 Kan. 397, 405, 271 P.2d 798, and the...
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Larsen v. Employers Mut. Cas. Co. of Des Moines, Iowa
...sufficient evidence to establish his position beyond any question. The appeal was dismissed. In the recent case of Zerger v. Stucky, 186 Kan. 142, 348 P.2d 612, the transcript filed by appellant was not only insufficient to enable the appellee to prepare a counter abstract therefrom, but al......
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Rosey's Estate, In re
...as is necessary for a review of the judgment rendered and sufficient to establish his position beyond question (Zerger v. Stucky, 186 Kan. 142, 348 P.2d 612). 2. In order for an appellant to appeal from trial errors, he must appeal from the order overruling his motion for new trial and also......
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Gleichenhaus v. Pratt
...where no real embarrassment to the opposite party has resulted. (In re Estate of Rosey, 187 Kan. 254, 356 P.2d 849; Zerger v. Stucky, 186 Kan. 142, 348 P.2d 612.) But appellants must not trade on the good nature of the court, because the rule is one that should be observed. Since defendant ......