*1 58,641 No. 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, Telephone 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 for 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 whether 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 Buchele 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 clerk’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 from 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 not 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 court’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 actually 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 urges us to consider and case of 387, 11 S., I. N. 375 U.S. L. 2d 84 S. Ct. 397 Ed. Thomp Thompson, District denied United States Court petition

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 made 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 83 S. Ct. 283 majority Supreme the the determining Thompson, When “unique facts find circumstances” existed. Court relied on two First, objection the timeliness of government the raised no second, and, the the trial court declared that motions ample time. The in that case the was made in dissent post-trial requirements motions and the time for noted that by mandatory cannot the are be extended filing appeals for appeal, upon by parties except, court or neglect. excusable showing of a 60-2103 that be taken within 20 appeal except upon after the notice of been neglect

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 motion 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 enlarge 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, act 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 motion 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 to 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 cannot 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 considered 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 actual 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 date 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.), cert. 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 approved 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. 620 P.2d 1108 Haley Hershberger, v. (1971),

In 207 Kan. 485 P.2d 1321 Haley meaning court construed the of service on an “indi- 60-304(a) vidual” under K.S.A. as leaving copy include petition with secretary. summons the individual’s Juris- person only acquired by diction could over the method Bray Bayles, prescribed by the statute. 228 Kan. (1980), court, Prager, writing P.2d 807 for the reached the Justice conclusion, Bayles’ same upon secretary that service was not Bayles. service the “individual” statutory Using die rules of reviewing construction and prior statutes, this interpreting decisions of similar does the 60-205(e) exception with the clerk include depositing pleadings judge’s office, claims? The statute pleadings clerk, papers other may “except judge papers that the to be filed with him, in event shall which note thereon the date and forthwith transmit meaning them the clerk.” The irst, judge accept of the statute is clear. F must at that judge accepts papers, he must with him. If the take the acceptance and then forthwith the date of note the statute cannot be plain language papers to the clerk. wife, leaving include interpreted to car, home secretary leaving or bailiff or office. 60-205(e) judge accept that a provides initially prior their other sheet. office for on the docket

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 clerk, 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. appeal 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(e) 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 which 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.