City of Kansas City v. Dore

The opinion of the court was delivered by Greene, J. :

Edward Dore and his wife, Ellen Dore, recovered a judgment in the court of common pleas of Wyandotte county against the city of Kansas City, Kan., for injuries resulting to them by the death of their minor son, Edward Dore. It was charged that the death was occasioned by the city in negligently maintaining a dangerously deep pond, attractive to boys, adjacent to one of the thoroughfares in the city, and that while playing therein Edward Dore was drowned.

The plaintiff in error had one year after the rendition of the final judgment to commence proceedings in this court to reverse, vacate or modify the judgment under section 5042 of the General Statutes of 1^01. On March 15, 1905, chapter 321 of the Laws of 1905 became effective. This chapter amended and repealed section 5042 of the General Statutes of 1901 by limiting the time within which an appeal could be taken to reverse, vacate or modify a money judgment against a municipal corporation to thirty days from the settlement of the case-made or ninety days from the entry of the judgment. The final judgment was rendered December 13, 1904. The case-made was settled February 3, 1905, and filed in this court December 9, 1905.

*25 The defendants in error challenge the jurisdiction of this court to consider the merits of the controversy for the reason .that the case-made was not filed within the time limited by chapter 321 of the Laws of 1905. The right to an appeal is neither a vested nor a .constitutional right. It is purely statutory,, and may be limited by the legislature to any class of cases or in any manner, or may be entirely withdrawn. -The repeal of section 5042 left the plaintiff in error without any right of appeal except that provided in the amendment. This question was before this court in the case of Coal Co. v. Barber, 47 Kan. 29 , 27 Pac. 114 , where it was said:

“A party who has been defeated ip a civil action in. the district court has no vested right to an appeal or to the prosecution of proceedings in error in the supreme court to review the rulings or judgment of the district court before he has filed his appeal or proceedings in the supreme court; and an act of the legislature taking away the privilege of appeal or the permission to prosecute proceedings in error before the appeal or petition in error is filed is valid and constitutional.” (Syllabus.)

This principle is amply sustained by the authorities. (Lake Erie, etc., R. Co. v. Watkins, 157 Ind. 600 , 62 N. E. 443 , Andrews v. Swartz, 156 U. S. 272 , 15 Sup. Ct. 389, 39 L. Ed. 422 ; Cooley’s Const. Lim., 5th ed., *384.)

It is contended by the plaintiff in error that this proceeding is not affected by the repeal of section 5042, because it was a proceeding that'had been commenced and was pending when the repealing act went into effect, .within the meaning of section 7342 of the General Statutes of 1901, which provides:

“The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed. The provisions of any statutej so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.”

With this we do not agree. A proceeding in error is *26 not commenced in this court until a petition in error, to which is attached a case-made or a transcript of the record, and a precipe for a summons are filed with the clerk of this court. The preparation of a case-made for this court is no more the commencement of an appeal herein than the preparation of a petition is the commencement of an action in the district court. In Toof v. Cragun, 53 Kan. 139 , 35 Pac. 1103 , it was said:

“The appellate jurisdiction of this court is subject to the regulation of the legislature, and unless a party brings himself within the requirements of the statute prescribing time and manner of removing a case to this court he is not entitled to a review.” (Syllabus.)

Under the statute in force when the appeal was filed in this court we cannot take jurisdiction and hear this case on its merits. The motion to dismiss is therefore allowed.