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Rice v. Hovey

Supreme Court of Kansas
Jun 30, 1956
299 P.2d 45 (Kan. 1956)

Opinion

No. 40,072

Opinion filed June 30, 1956.

SYLLABUS BY THE COURT

1. APPEAL AND ERROR — Rule No. 5 of Supreme Court. Rule No. 5 of the Supreme Court requires that the abstract of the appellant shall include a specification of the errors complained of, separately set forth and numbered.

2. SAME — Rules of Supreme Court — Record on Appeal — Abstract. Appellants' failure to comply with Rule No. 5 of the Supreme Court Rules ( 174 Kan. XI; G.S. 1949, 60-3826) by including in their abstract of record an abstract of the pleadings and of the evidence to enable this court to arrive at a full understanding of the questions involved and their failure to include a specification of errors complained of separately set forth and numbered, is fatal, and following Miller v. Rath, 173 Kan. 192, 244 P.2d 1213 and Quick, Receiver v. Purcell, 179 Kan. 319, 295 P.2d 626, the appeal is dismissed.

Appeal from Douglas district court; FRANK R. GRAY, judge. Opinion filed June 30, 1956. Appeal dismissed.

William L. Lemesany, of Lawrence, was on the briefs for intervenors Mrs. L.H. Menger, Mrs. W.O. Nelson and Mrs. V.P. Wilson.

Forrest A. Jackson, of Lawrence, was on the briefs for appellees Frank L. Rice and Nettie E. Rice. Charles D. Stough, of Lawrence, was on the briefs for appellee Lawrence Woman's Club.


The opinion of the court was delivered by


This was an action to quiet title to real estate previously conveyed to plaintiffs by the Lawrence Woman's Club, Lawrence, Kansas. The trial court permitted certain of the group's members to intervene, who filed an answer. The trial court quieted title in plaintiffs, and the interveners have appealed.

The abstract of appellants does not contain an abstract of the pleadings, nor even a resume of them; neither is the evidence abstracted, nor is reference made to the pages of the stenographer's transcript, nor is there any specification of errors complained of as required by Rule No. 5 of this court. At most, appellants have a nine-page statement of facts and nothing more.

Under Dupont v. Lotus Oil Co., 168 Kan. 544, 213 P.2d 975; Miller v. Rath, 173 Kan. 192, 244 P.2d 1213; Gilley v. Gilley, 176 Kan. 61, 268 P.2d 938; and, Quick, Receiver v. Purcell, 179 Kan. 319, 295 P.2d 626 and cases cited, where appellant makes no attempt to comply with Rule No. 5, his appeal is subject to dismissal.

Error is never presumed and it is the duty of the party complaining to indicate wherein it was committed. This court cannot review error, which is claimed was committed, if none is specified ( Quick, Receiver v. Purcell, supra).

In Miller v. Rath, supra, it was held:

"Appellant's failure to comply with Rule 5 of the Supreme Court Rules ( 169 Kan. XI; G.S. 1949, 60-3826), by including in his abstract of record such portions thereof as it is necessary to read in order to arrive at a full understanding of the questions presented for review and his failure to include a specification of errors complained of separately set forth and numbered, is fatal, and the appeal will be dismissed." (Syl. 1.)

The appeal must be and it is dismissed.


Summaries of

Rice v. Hovey

Supreme Court of Kansas
Jun 30, 1956
299 P.2d 45 (Kan. 1956)
Case details for

Rice v. Hovey

Case Details

Full title:FRANK L. RICE and NETTIE E. RICE, his wife, Appellees, v. WILLIAM H…

Court:Supreme Court of Kansas

Date published: Jun 30, 1956

Citations

299 P.2d 45 (Kan. 1956)
299 P.2d 45

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