90 P. 998 | Kan. | 1907
The opinion of the court was delivered by
The defendants in error insist that the plaintiff is not entitled to be heard here and that the case should be dismissed on the following grounds: (1) The judgment is an entirety, and one part thereof cannot be appealed from and the benefits of another part be accepted and not appealed from; (2) no notice of appeal, was given, and the appeal was not taken within four months after the rendition of the judgment.
Under the common-law procedure it must be conceded that the final adjudication of an action resulted in one judgment, which was an entirety, and on appeal it stood or fell as a whole. Under' the code system provision is made for joining parties and for uniting
The provisions for the correction of errors of the district courts are not so specific in terms as the provisions for the making of orders and the rendering of judgments therein, but, construed together, it must be apparent that provisions for the correction of an error should be as specific or as broad as the authority to decide erroneously. Jurisdiction being accorded, the authority of a court to decide erroneously is as complete as to decide correctly, and, until lawfully reversed, an erroneous order or judgment is as binding upon the parties thereto as a correct order or judgment. Since, then, there is authority in our code for numerous orders and judgments in one action, the appellate provisions found in sections 542 and 542a of the code (Gen. Stat. 1901, §§ 5019, 5020) should, if consistent with the language used, be so construed as to allow the correction of one of such judgments or orders that is erroneous and is so far distant and independent of the others that, without violence to sound reason and justice, it may be adjudicated on appeal without bringing up for review the entire decision.
Subdivision 3 of section 542 of our code (Gen. Stat. 1901, § 5019) seems to justify this construction, as applied to this case at least, when read in connection with the other provisions of the section. The section, after providing that “the supreme court may reverse, vacate and modify a judgment of a district court . . . for errors appearing on the record; and in the reversal of such judgment or order may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof,” reads further:
It will be seen that the words “judgment” and “order” are used somewhat indiscriminately in this section, as they are also in some other portions of the code; so much so as to suggest that any specific, independent part of a judgment is appealable, as is especially provided in the codes of "Wisconsin, Iowa, Missouri and some other code states. We do not, however, go to this extent herein. The determination of the division of the property in a suit for a divorce is denominated an order, in the code (§ 646; Gen. Stat. 1901, § 5139), and a decree for alimony was said to be a final order in In re Johnston, Appellant, 54 Kan. 726, 730, 39 Pac. 725. It may be said in this case that the appeal is from a part of the final judgment. If so, the distinction may be this: The order determines what portion of the property each litigant is to have; the judgment conveys the respective portions, so determined, to the respective litigants. If the order falls, as we hold it must, the portion of the judgment based thereon must of necessity fall with it.
As said, we suggest, but do not decide, that a specific, independent part of a judgment may be appealed from under our code.
Without citing any express provision of the code authorizing the decision, it was said in St. Paul Trust Co. v. Kittson, 84 Minn. 493, 87 N. W. 1012:
“An appeal may be taken from a part of a final order or judgment if the part whereby the appellant is aggrieved is so far distant and "independent that it may be adjudicated on appeal without bringing up for review the entire judgment or order.” (Syllabus. See, also, Hall v. M’Cormick, 31 Minn. 280, 17 N. W. 620; Golding v. Golding, 74 Mo. 123; Lake v. Lake, 17 Nev. 230, 30 Pac. 878; Martin v. Martin, 112 Wis. 314, 87 N. W. 232, 88 N. W. 215.)
Since, then, we hold that the appeal is not from “a
It is urged, however, that, if the proceeding in error be not dismissed, the award of the land to the defendant should be sustained, and it is said that the division of property between litigants in a divorce suit rests in the discretion of the court and it cannot be said that the decision of the court is inequitable or that it constitutes an abuse of such discretion. We could readily assent to this proposition if we could say the matter rested solely in the discretion of the court. It does not. If the land in question was the separate property of the plaintiff, the court was required by section 646 of the code (Gen. Stat. 1901, § 5139) to award it to her, and was inhibited from awarding it to the defendant. If, on the other hand, the land was “acquired.by the parties jointly during their marriage,” although plaintiff held the legal title thereto, the court was authorized to make such division thereof and of other property thus acquired as appeared to the court just and reasonable. The court does not find that the land in question was acquired by the parties jointly during their marriage; nor do we believe that the evidence would justify such a finding. The court does find that the equitable title to the land was in the plaintiff and the defendant equally. We do not think there is any evidence to support this finding.
The order awarding, and the judgment conveying, the land to the defendant is reversed and a new trial is granted.
ORDER DIRECTING JUDGMENT.
Per Curiam: Since the order awarding the land to the defendant was reversed in this case the parties have agreed that, as the record discloses all the facts, this court may accept them as agreed to and direct the judgment to be rendered. The case is therefore remanded with instructions to award the land in question to the plaintiff as her separate property, and to set aside the judgment in favor of the plaintiff against the defendant for $1250, which was made a lien on the land, and that in all other respects the judgment be the same as before.
