Bowen v. Wilson

Lewis N. Bowen v. Charles F. Wilson

Bowen v. Wilson, 144 P. 251 (Kan. 1914)

Court: Supreme Court of Kansas · State Highest Courts
Decided: November 14, 1914
Docket: No. 19,037
Judges: Porter
Citations: 144 P. 25193 Kan. 3511914 Kan. LEXIS 436
Disposition: Dismissed.

Cited by 15 2 descriptions by later courts

Syllabus

SYLLABUS BY THE COURT. 1. Appeal — On Question of Law Only — Motion, for New Trial Unnecessary. Where the only error complained of is the overruling of a motion to dismiss an appeal from the probate court upon facts which are not disputed, the filing of a motion for a new trial is unnecessary, and can not serve the purpose of extending the time to appeal. 2. Same — No Vested Right to an Appeal. There is no vested right to an appeal, and the legislature may take away from the defeated party the privilege before his appeal has been perfected. (Kansas City v. Dore, 75 Kan. 23, 88 Pac. 539.) 3. Same — Appeal to Supreme Court Taken Too Late. When the judgment appealed from was rendered, October 15, 1912, the defeated party had one year in which to appeal to the supreme court. Chapter 241 of the Laws of 1913, limiting the time to six months, took effect July 1, 1913. Held, that an appeal taken more than six months from the date of the rendition of the judgment appealed from is too late.

Summary

Appeal from Stafford district court; Daniel A. Banta, judge.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Porter

Text extracted by OCR from a scanned original; check the original for exact wording.

*352 The opinion of the court was delivered by Porter, J.:

The proceeding originated in the probate court, and was appealed to the district court. The appellant here, who was the appellee there, filed a motion to dismiss the appeal, which was overruled, and this is the order-we are asked to review. The cause was tried on its merits and finally disposed of October 15, 1912. The appeal to this court was'taken on September 6, 1913. 'The appellee has filed a motion to dismiss the cause, and the motion must be sustained. The facts upon which the trial court overruled the motion to dismiss the appeal from the probate court were not disputed, and the ruling was upon a question of law only, so that no motion for a new trial in the district court was necessary to have a review of the order. (Wagner v. Railway Co., 73 Kan. 283 , 85 Pac. 299 ; Nichols v. Trueman, 80 Kan. 89 , 101 Pac. 633 .) The time in which the appellant could appeal commenced when the cause was finally disposed of. (McIntosh v. Wheeler, 58 Kan. 324 , 49 Pac. 77 .) He could not extend the time by the filing of an unnecessary motion for a new trial. (Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36 ,'48, 39 Pac. 718 .) Appellant has not brought up the record of the proceedings on the merits, and the only question presented here is the ruling of the district court on his motion to dismiss, which can not be considered for the reason that this appeal was not brought within proper time. . (Dyal v. City of Topeka, 35 Kan. 62 , 10 Pac. 161 .) It is appellant’s contention that his right to appeal within a year accrued to him before chapter 241 of the Laws of 1913, limiting the time to six months, was passed. The act took effect on July 1, 1913, and contains no saving clause limiting its effect. In general terms it provides that the appeal in all cases shall be perfected within six months from the rendition of the judgment or order appealed from. *353 It has been settled that there is no vested right to an appeal, and that the legislature may take away from the defeated party the privilege before his appeal has been taken. (Coal Co. v. Barber, 47 Kan. 29 , 27 Pac. 114 ; Kansas City v. Dore, 75 Kan. 23 , 88 Pac. 539 .')

It follows, therefore, that the cause will be dismissed.

How later courts describe this case

Explanatory parentheticals written by citing courts — 2 in all; the most informative distinct ones are shown.

(involved the claimed right to an appeal)

In re the Appeal of Garden City Med. Clinic, 137 P.3d 1058 (Kan. Ct. App. 2006)
(no vested right of appeal)

Resolution Trust Corp. v. Fleischer, 892 P.2d 497 (Kan. 1995)

Cited by 15 cases

View all citing references →

Relies on it most ⓘ

Olathe Community Hospital v. Kansas Corporation Comm'n652 P.2d 726 (Kan. 1982)
Harder v. Towns573 P.2d 625 (Kan. Ct. App. 1977)
Resolution Trust Corp. v. Fleischer892 P.2d 497 (Kan. 1995)
Schubach v. Hammer232 P. 1041 (Kan. 1925)
Achenbach v. Baker139 P.2d 407 (Kan. 1943)
Union Pacific Railroad v. Missouri Pacific Railroad10 P.2d 893 (Kan. 1932)

Most recent

In re the Appeal of Garden City Medical Clinic137 P.3d 1058 (Kan. Ct. App. 2006)
Resolution Trust Corp. v. Fleischer892 P.2d 497 (Kan. 1995)
Olathe Community Hospital v. Kansas Corporation Comm'n652 P.2d 726 (Kan. 1982)
Harder v. Towns573 P.2d 625 (Kan. Ct. App. 1977)
Fields v. Anderson Cattle Co.396 P.2d 284 (Kan. 1964)
Heilman v. Heilman299 P.2d 601 (Kan. 1956)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 7

Depth	Case	Cited by
	Wagner v. Atchison, Topeka & Santa Fe Ry. Co., 85 P. 299 (Kan. 1906)	39
	City of Kan. City v. Dore, 88 P. 539 (Kan. 1907)	16
	Nichols v. Trueman, 101 P. 633 (Kan. 1909)	8
	McIntosh v. Wheeler, 49 P. 77 (Kan. 1897)	4
	Ritchie v. Kan., Neb. & Dakota Ry. Co., 55 Kan. 36 (1895)	47
	Leavenworth Coal Co. v. Barber, 47 Kan. 29 (1891)	22
	Dyal v. City of Topeka, 35 Kan. 62 (1886)	4

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