*1 58,641 Nо. A. Tobin Construction Plaintiff-Appel Inc., Company,
J. lee/Cross-Appellant, Kemp, Secretary Transpor B. of John Department tation, Defendant-Ap Transportation, Kansas Wyandotte pellee, County, Kansas, Defendant City Third-Party and Kansas Plaintiff-Appellee, Power Light Company, Third-Party Defendant-Appellant, Tеlephone Company, Third-Party De Southwestern Bell fendant-Appellant. 278) P.2d
(721 Opinion filed June Mudrick, Topeka, cause, Dimmitt, argued David P. A. Lawrence Thomas, Weeks,
Topeka, Lysaught, Chartered, and Charles O. & Thomas City, third-party defendant/appellant Kansas were with brief him on the Telephone Company. Southwestern Bell Gingrich, City, Missouri, argued cause, Robert P. of Kansas and Frank- /. Hummer, Davis, Unrein, McCallister, Topeka, & lin Hummer was with him City third-party defendant/appellant Light on the briefs for Kansas Power & Company. Roy Bash, Bash, P.C., Missouri, City, argued of Miller and of Kansas the cause Miller, firm, Harbur, Park, R. and W. of the same Nathan C. Overland plaintiff-appellee/cross-appellant were with the brief fоr A. J. Company, Construction Inc. opinion the court was delivered Inc., Co., Appellee, A. Tobin Construction Lockett, J.: J. *2 cross-appeal. The of its (Tobin) óf the dismissal seeks review cross-appeal Tobin’s was not Appeals determined Court of jurisdiction. granted it lack of We timely filed and dismissed for by this only case is whеther Tobin’s issue review. timely The facts and dates relevant to a cross-appeal was issue are follows. determination Tobin, contractor, against Secretary brought suit Wyandotte County Transportation and breach of road con- damaged by it Tobin contended was struction contract. moving utility delay company in facilities alleged from County impleaded utility compa- site. The several nies, City Light Company (KCP&L) including Kansas Power (SWB). Telephone Company Bell and Southwestern 1985, 15, August judgment On the district court entered in against Wyandotte County in the favor of amount of $25,686; $77,059; in against against SWB the amount of $128,432. in the amount of KCP&L award,
Tobin, served all with dissatisfied 1985, Monday, August 26, judgment amend on motion alter or motion, day filing the file the in the last but failed to during clerk of the district court the office of the hours Instead, open accept filings. evening after courthouse was closed, employed the courthouse had a courier Tobin’s coun- attempted Judge to file Buсhele at sel that the was Mrs. Buchele informed courier residence. suggested at the motion be taken the court- home Judge inform the courier Mrs. Buchele did not house. August August town 25 to 28. Buchele was out of from Buchele, returning August his office On reviewed noting date on the motion and without Tobin’s motion filing. The was docketed it to сlerk’s office for sent August the clerk’s office on 10, 1985, September on a notice of
KCP&L filed September 1985. In on SWB a notice meantime, alter or response filed a to Tobin’s motion to SWB and, points opposition its in to the as one of judgment amend timely motion, was not filed. Without contended response, Judge Buchele treated ruling on SWB’s as if filed and considered on its merits. 27, 1985, On September sustaining part entered an order part denying Tobin’s motion to alter or amend motion, Following ruling the court’s Tobin filed its notice cross-appeal 17, 1985, utilities’ on October cross-appealing within the time for ruling on its motion amend, but out the dates frоm of the notices of cross-appeal The Court of determined the was not jurisdiction. granted and dismissed it for lack of We review. order to determine whether the properly
dismissed, must we decide whether Tobin’s motion to alter or timely filed, thus extending the time for cross-appeal. a notice of 60-259(f) requires a motion to alter be served and filed not later than ten after judg- *3 Here, judgment August 15, 1985, ment. was entered on and the motion to or amend alter was served all on Monday, However, August actually 1985. the motion was not 30, 1985, filed with the clerk August days court until entry judgment. after timely
The issue of whether or not Tobin’s motion was filed is significant running because the appeal the time for is termi- timely nated a judgment. motion to K.S.A. 60-2103(a). Ordinarily, appeal an days must be taken within 30 entry of judgment. 60-2103(a). Appellee has days appeal after the notice been served to file notice of cross-appeal. 60-2103(h). cross-appeal notice of 17, 1985, was filed until entry nоt October over two after months days of judgment and more than 20 appellants’ after notice of appeal. Accordingly, Appeals the Court of determined the cross- timely was filed. not argues cross-appeal timely
Tobin its was filed because begin running September 27, 1985, did not until the date of order on the сourt’s the motion to alter or amend determining
In
whether Tobin’s motion to alter or amend
timely filed,
60-205(e).
we look first to K.S.A.
That
procedure necessary
filing:
statute establishes the
a proper
required by
“The
and other
as
this
court,
by filing
except
with the clerk of the
article shall be made
them
him,
judge may permit
shall
be filed
which event he
note
transmit
them to the
of the clerk.”
thereon the
date
forthwith
argued
It
were
clerk
is not
Rather,
excep-
this
Tobin contends
case meets
court.
allowing papers
judge,
filed with the
if the
tion
However,
permits
filing.
squarely
such
does not fall
exception. Judge Buchele was
within that
out of town
thus
aсtually
August
did
with him on
office,
Rather,
he
upon returning
reviewed the motion
Thereafter,
filing.
it to the clerk’s office for
forwarded
if it
ruled
the merits of the
had been
on
accepting
Tobin claims it relied on
Buchele’s
the motion
for consideration
did not file
notice of
until
after
was received.
ruling
apply
Thompson
urgеs us to consider and
case of
387, 11
S.,
I. N.
375 U.S.
L.
2d
son’s for naturalization. Canadian national findings past to amend certain two notice of motions days government object the timeli 10-day limitation. The did not ness the motion and the district court declared that “ample new mаde in time.” After for a trial was denied, days Thompson appealed within 60 motion was denial the motion but not within appealed
final
The Court
order
from.
Court,
untimely.
Supreme
in a 5
to 4
because
decision,
disposition
an
be filed after the
permitted
beyond
untimely
for new trial and
the time limitation
*4
Lines,
Truck
taking
appeal.
for
The Court followed Harris
Packers,
Inc.,
Cherry
371 U.S.
9 L. Ed. 2d
Inc. v.
Meat
showing party of excusable based on the failure of a Here, appeal. Tobin knew learn the date the appeal was served and filed with the clerk. notice of objected timeliness of Tobin’s motion and the district finding specific post-trial no court made motiоn had period by filed with it within time been- allow the statute. Thompson support does Tobin. not Harris support position “unique
Nor does circum- Harris, stances.” In the counsel had responsibility who the sole determining appeal whether not an or should be taken was request vacationing. Trial counsel filed for an extension time 30-day file a period. notice of within the time The trial granted the extension of time for the of the notice of period which was then filed within granted the extended by the trial court. The Court of for the Seventh Circuit ground on the that an extension was not warranted. certiorari,
On Supreme the United States Court vacated and finding remanded. court held that the great disturbed, entitled to deference and should not have been light unique case, in circumstances especially in view of fact motion for an granted extension was 30-day period within the allowed for a notice of Tobin’s motion 10-day period filed within the allowed by еnlarge statute nor did Tobin file a motion to the time for filing the motion expiration Harris days. of the 10 support does not Tobin. power
The district has the to enlarge the time for performing 60-206(b): certain acts under K.S.A. chapter by given “When or a notice thereunder or order of court an required specified time, аct or at allowed done or within a may any (1) cause shown at discretion with or without motion period enlarged notice if or order therefor is made before the period expiration originally prescribed by previous or as extended order (2) upon specified expiration period permit mоtion made after the the act neglect; to be done where the failure to act was the result of excusable but taking any (b), (b), not extend the time for action under K.S.A. 60-250 60-252 (b), (d) (e) (b) except 60-259 and 60-260 to the extent and under
conditions stated them.” (K.S.A. 60-259[f]) A motion to alter or amend is not *5 60-206(b)(2). Thus, provisions excluded authority which to the time in tо file a judge extend trial upon timely request judgment made to alter or motion upon time made after originally prescribed within Unfortunately, specified period. expiration permit filing requested filed to out of time. nor a motion neither judgment of a depositing Can filing period treated as judge’s within the both and motion to allow the to alter or amend expiration period? filing of that motion usually receive Statutory appellate procedure liberal rules of justice, although accomplish the ends of such Atkinson v. U.S.D. No. strictly are statutes construed. statutory Under the rules of
Kan. 684 P.2d construction, to alter or amend cаnnot be a motion additional that was never or ruled converted into an by the court. The district court could not consider district post-trial enlarge period motion as a neglect. because excusable permitted had
Tobin claims that Ruchele motions throughout nearly filed with him three documents to be other addition, him. In years pending before allowed chambers, his papers to be filed at residence or delivered to Therefore, personally. rather than Tobin contends rely judge’s prior accepting on the acts of be able to should future approval all accepted considerеd would procedure Tobin does
Appellants argue followed 60-205(e) set in K.S.A. within the definition out not come they any Specifically, argue K.S.A. circumstances. under set of 60-205(e) moving party obtain the actual judge. Additionally, SWB and file permission to to deliver the it is sufficient KCP&L contend they posses- delivered to the aсtual must be chambers — judge. sion of 5(e) the Federal Rules of 60-205(e) is similar to Rule 5(e) that a provides Rule
Civil Procedure. initially prior with him pleadings and other docket clerk’s office their transmission when complete procedure, Under this sheet. *6 custody judge’s papers. The to failure forward the
papers
necessary
enter a
prejudice
forthwith or to
datе does not
party
comply
attempting
filing requirement.
the
to
with the
4
Miller,
Wright
§
&
Federal Practice and Procedure: Civil
1153
Thus,
judge personally
as the
(1969).
as
accepts
papers,
soon
the
they
5(e)
of
meaning
are filed within the
both Rule
and Rule
25(a)
Appellate
of the Federal Rules of
The purpose
Procedure.
allowing pleadings
judge
to be filed with a
is not to make the
clerk,
judge
depository
an alternate
delay
for the
but to avoid
and
implementation
temporary
to facilitate the
restraining
orders
applications. Application
hearing
emergency
President
Col.,
Georgetown
&
1000,
Directors
331
F.2d
1001 n.2
(D.C. Cir.),
cеrt. denied
(1964).
U.S. 978
interpreting
There are no Kansas cases
depositing
whether
pleadings
judge’s
in the
filing
chambers
is sufficient
under
60-205(e).
is
The statute
not to be construed in a manner
uncertainty,
injustice
confusion,
possible
leads to
or
if
phrases
construe it otherwise. The words and
statute are to
be
according
apрroved usage
construed
context and the
language,
given
words in common use are
their
to be
natural
Security
Co.,
Coe v.
Ins.
ordinary meaning.
National
Kan.
In
207 Kan.
transmission to the clerk’s complete judge per- when the procedure, filing is Under custody papers. purpose of K.S.A. sonally accepts 60-205(e) allowing pleadings be filed with a is not to сlerk, depository an alternate but to avoid make the *7 implementation temporary restrain- delay and to facilitate the applications. hearing emergency ing orders and entirely statutory right and not a vested right The is appellate Kansas courts in the federal or Kansas constitutions. apрeal only if the is taken jurisdiction to entertain an have by prescribed in the manner within the time limitations motion to alter or applicable statutes. Tobin’s time for expired. cross-appeal was out of judgment had Tobin’s amend by Appeals. the Court of properly time and Appeals is affirmed and Tobin’s judgment of the Court of is dismissed. respectfully disagree holding J., dissenting: I Herd, majority. controlling issue whether Tobin Con- the trial consider Company was entitled to have struction judgment. notice on amend the its motion to get the courthouse in time to parties but failed to .the other then amend with the clerk. Tobin properly file its motion to 60-205(е) by filing attempted to use found, Tobin’s courier judge Since the could not judge. and left the motion on the gained entrance to judge accomplished within time. The This was judge’s desk. judg- timely filed and amended the motion as then treated not, law. If complied with the think Tobin’s actions ment. I a trial 60-206(b)(2) upon. relied It authorizes can be in whiсh a motion to the time to extend original prescribed by of motion made filing time was not motion to extend
time. While a formal Tobin, deposit desk within filing period and the treatment having strong been filed are as as a formal good attempt faith illustrate obtain amend- ment actions were in substantial com- pliance with the statutes. highly
A technical these statutes serves no purpose. meritorious The case is on The trial court ruled should be amended. The entire case should be appellate court. I would reverse the Court of Appeals and affirm the trial court.
Schroeder, C.J., Prager, J., join foregoing dissent- ing opinion.