The opinion of the court was delivered by
This is an appeal by Bernd B. Szoboszlay (plaintiff-appellant) in an action brought under the Small Claims Procedure Act, K.S.A. 61-2701 et seq., against Mrs. Esta Glessner (defendant-appellee). The appellant contends the trial court erred in failing to award him attorney fees as provided by K.S.A. 1982 Supp. 61-2709 in an appeal taken by Mrs. Glessner from a judgment entered against her in the small claims action.
The facts pertinent to this appeal are brief and undisputed. On March 20, 1981, the apрellant filed a small claims action against his landlord, Mrs. Glessner, for the return of his security deposit. *476 A judgment of $150 was entered in favor of the appellant (tenant) by the district magistrate judge on April 7, 1981. Mrs. Glessner appealed to the district court pursuant to K.S.A. 1982 Supp. 61-2709(c) and counterclaimed for damages in the amount of $1,140. In his answer to the counterclaim the appellant prayed for reasonable attorney fees, return of his security deposit and damagеs under K.S.A. 1982 Supp. 58-2550(c) (Residential Landlord and Tenant Act). On July 29, 1981, Associate District Judge Melvin M. Gradert affirmed the judgment entered in the small claims proceeding, but modified the amount of the judgment by reducing it to $124.02 due to additional rent owed by the tenant in the amount of $25.98. No provision was made for attorney fees and the appellant (tenant) filed notice of appeal to the Court of Appeals with the clerk of the district court on August .27, 1981.
The appellant was issued an order by the Court of Appeals to show cause why the appeal should not be dismissed for lack of jurisdiction for failure to file the notice of appeal within the ten-day limit set forth in K.S.A. 61-2102(c) for appeals in limited action cases. The appellant responded that K.S.A. 1982 Supp. 61-2709(fo) under the Small Claims Procedure Act provides that a decision of a district judge or associate district judge entered in a de novo appeal in a small claims proceeding may be appealed “in the manner provided by article 21 of chapter 60,” which would allow 30 days to file a notice of appeal. The parties were directed to file briefs on the issue of jurisdiction which would be determined along with the merits. Due to the apparent conflict in the Code of Civil Procedure for Limited Actions regarding the time limit within which a notice of appeal to the appellate courts must be filed in limited action cases, this case was transferred to the Supreme Court pursuant to K.S.A. 20-3018(c).
Was this appeal timely filed under the applicable statute? The filing of a timely notice of appeal is jurisdictional.
State v. Moses,
The issue of jurisdiction in this case arises by reason of two *477 statutes contained in the Code of Civil Procedure fot Limited Actions, found in chapter 61 of the Kansas Statutes Annotated, governing the time within which a notice of appeal must be filed. K.S.A. 61-2101, the general appeal provision fot chapter 61 actions, provides:
"(a) All appeals from actions pursuant to this chapter shall be by notice of appeal specifying the order, ruling, decision or judgment complainеd of, and shall be filed with the clerk of the court from which the appeal is taken within ten (10) days after the entry of such order, ruling, decision or judgment . . . .”
The statute governing appeals in actions under the Small Claims Procedure Act, K.S.A. 1982 Supp. 61-2709, reads in part:
“(a) An appeal may be taken from any judgment under the small claims procedure act. All appeals shall be by notice of appeal specifying the party or parties taking the appeal and thе order, ruling, decision or judgment complained of and shall be filed with the clerk of the district court within 10 days after entry of judgment. All appeals shall be tried and determined de novo before a district judge or associate district judge, other than the judge from which the appeal is taken. . . .
(b) Any order, ruling, decision or judgment rendered by a district judge or associate district judge on an appeal taken pursuant to subsection (a) may be appealed in the manner provided in аrticle 21 of chapter 60 of the Kansas Statutes Annotated.” (Emphasis added.)
K.S.A. 60-2103 provides that an appeal shall be taken within 30 days of the entry of judgment. Simply stated the issue is whether actions brought under the Small Claims Procedure Act are ah forded the longer appeal time provided in article 21 of chapter 60 while appeals in other limited action cases are required to be filed within the shorter time set forth in 61-2102.
This court has recognized on numerous occasiоns that the right to an appeal in this state is neither a vested nor constitutional right, but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases, or in any manner, or it may be withdrawn completely.
In re K-Mart Corp.,
Prior to its amendment, K.S.A. 61-2709 provided that an appeal could be taken from a judgment under the Small Claims Procedure Act “in the manner prescribed by the code of civil procedure for limited actions.” The statute was amended in 1977 to overcome constitutional infirmities created by the unification of the district courts in 1976 where no provision existed for a hearing de novo in small claims proceedings in which the parties could be represented.by counsel. See Heinemann^Legislation 1977, 46 J.K.B.A.- 69, 90 (1977); The statute now provides a two-step appeal рrocess in small claims actions. A judgment rendered in a small claims proceeding may first be appealed within ten days for a trial de novo before a different district judge or associate, district judge. Under K.S.A. 1982 Supp.-61-2709(h) an appeal may then be taken to the appellate courts- “in the manner provided in article 21 of chapter 60” from the judgment entered, in the de novo adjudication.
The statute is couched in terms familiar to all lawyers and judges in this statе and is not ambiguous. It is a fundamental principle of statutory construction that words in common usage are to be given their natural and;ordinary meaning in arriving at the proper construction of a statute.
Stephens v. Van Arsdale,
The statute is not rendered ambiguous by the mere fact 61-2102 provides a shorter appeal time applicable to other limited action proceedings. K.S.A. 61-2702 prоvides:
“This act shall apply to and be an alternative procedure for the processing of small claims pursuant to the code of civil procedure for limited actions,- and the provisions of this act shall be part of and supplemental to the code of civil procedure for limited actions . . . Except as otherwise specifically provided or where a different or contrary provision is included in this act, the code of civil procedure for limited actions shall be applicable to thе processing of small claims and judgments under this act.” (Emphasis added.)
It is a cardinal rule of law that statutes complete in themselves, relating to a specific thing, take precedence over general statutes or over other statutes which deal only incidentally with the same question or which might be construed to relate to it. Where there is a conflict between a statute dealing generally with a subject, and another dealing specifically with a certain phase of it, the specific legislation controls.
Chelsea Plaza Homes, Inc. v. Moore,
Applying the aforementioned principles of statutory construction, the only reasonable conclusion which can be reached is that the statute means what it plainly says; that is, that the 30-day time limit for filing appeals set forth in 60-2103 applies to appeals taken from the judgment of a district judge or associate
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district judge entered in de novo adjudications in small claims proceedings pursuant to 61-2709(c). While K.S.A. 61-2102 provides the general procedure for appeal applicable in limited action proceedings, 61-2709 sets forth the appeal procedure applicable to a specific group of limited actions —- those cases filed under the Small Claims Procedure Act. The method for taking an appeal from a judgment under the Act was changed from “in the manner prescribed by the code of civil procedure for limited actions” to “in the manner provided in article 21 of chapter 60” by the 1977 amendment of 61-2709. It is presumed the legislature intends to change the law when it amends the provisions of a statute.
Moore v. City of Lawrence,
The appellee further contends the appeal should be dismissed for the appellant’s failure to comply with Supreme Court Rule 3.05 (
It has been recognized that the procedural requirements of the rules may be waived and are not jurisdictional. See
Chetopa State Bancshares, Inc. v. Fox,
Addressing the merits of this appeal, the appellant (tenant) contends the trial court erred in failing to award him attorney fees as provided by K.S.A. 1982 Supp. 61-2709 in the appeal taken by the appellee (landlord) from the judgment entered against her in the small claims proceeding. K.S.A. 1982 Supp. 61-2709(a) provides in part:
“If thg appellee is successful on an appeal pursuant to this subsection, the court shall award to the appellee, as part оf the costs, reasonable attorneys’ fees incurred by the appellee on appeal.” (Emphasis added.)
When amended in 1977 the statute provided that the court “may” award attorney fees incurred by the appellee. In 1979 the
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statute was amended to provide that the court “shall” award attorney fees on an appeal taken pursuant to 61-2709(a). It has been recognized that the mandatory “shall” is not a hard and fast identifying mark which can forestall the mandatory or directory character to be assigned to any statutory provision
(City of Kansas City v. Board of County Commissioners,
The appellee contends the appellant was not “successful” on appeal because his judgment of $150 awarded in the small claims proceeding was modified to $124.02 by Judge Gradert. The definition of “successful party” as it applies to an award of attorney fees pursuant to 61-2709 was discussed in
Schuh v. Educational Reading Services of Kansas,
“The term ‘successful party’ has been held to be synonymous with ‘prevailing party.’ Beneficial Standard Properties, Inc. v. Sharps,136 Cal. Rptr. 549 ,67 Cal. App. 3d 227 (1977). The term ‘prevailing party’ is defined in Black’s Law Dictionary 1069 (5th ed. 1979) as:
“ ‘The party to a suit who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not necessarily to the extent of his original contention. The one in whose favor the decision or verdict is rendered and judgment entered. (Citation omitted.) The party ultimately prevailing when the matter is finally set at rest.’
“With respect to the specific question of attorney fees, it has been stated a prevailing party is the person who has an affirmative judgment rendered in his favor at the conclusion of the entire case.”
There it was held that although the appeal was voluntarily dismissed by the appellant the appellee prevailed on appeal and was entitled to recover attorney fees pursuant to 61-2709.
The appellee relies on two cases holding that where the amount awarded the plaintiff was reduced on an appeal taken by the defendant, the plaintiff was not the “successful party” and was not entitled to recover attorney fees. See
Garrison v. Trotter,
A number of cases have held'that where a plaintiff is substantially successful in his cause of action he is the successful party, although the plaintiff s judgment may have been reduced by an amount awarded the defendant on a counterclaim or on appeal. A situation similar to that presented here was invоlved in
Nesbitt v. District Court,
“The only apparent basis upon which such order could be supported is that the appellant was the successful party to the appeal. We do not think that such is the cаse. The appellant was not successful in having the judgment of the trial court reversed or set aside on any of the several specifications of error involving legal questions presented. The judgment was upheld in all respects except that this court found that it was excessive in a small amount which was not supported by the evidence. It is true that as a result of the decision of this court the judgment was reduced in an unsubstantial amount, but this is not to say that such reduction constituted the appellant the successful party on the appeal. By the express terms of the decision, the judgment, as modified, was affirmed. We think that is plain that the respondents were the successful parties on the appeal, and that therefore they are entitled to their costs. It follows that the trial court was in error in awarding costs on appeal to the appellant.”119 Mont, at 200-01 .
Other cases involving counterclaims have held that a рarty is successful” if he obtains a judgment for an amount in excess of the setoff or counterclaim allowed. In
Moss Construction Co. v. Wulffsohn,
“Under the pleadings and findings the award to plaintiff makes it the victor in the contest. Defendants denied owing any sum whatever to plaintiff and sought by way of counterclaim to recover certain damages. Hence, by all rules of logic when at the conclusion of the trial it was determined that plaintiff was entitled to *484 $2,654.29 after allowing defendants a partial offset, it became necessarily the ‘successful party’ within the meaning of that term as used in the contract.
“Not only do logic and reason dictate such a conclusion, but analogous authority points to the same result. It is well established that generally there can be only one final judgment in an action and although a cross-complaint has been filed and matters therein stated are put to issue it is not such a pleading that requires, or permits the rendition of twо separate judgments. (Nicholson v. Henderson,25 Cal. 2d 375 , 381 [153 P.2d 945 ]; Sjoberg v. Hastorf,33 Cal. 2d 116 , 118 [199 P.2d 668 ].) Hence, there could have been only one judgment entered herein and that was and is the net judgment rendered in favor of plaintiff. Where such is the case it has uniformly been held that the party awarded the net judgment is the prevailing litigant and thus the successful party. (Dobbins v. Horsfall, 58 Cal. App. 2d 23, 27 [136 P.2d 35 ]; Shelley v. Hart,112 Cal. App. 231 , 243 [297 P. 82 ].) It follows that since defendants were neither ‘successful’ nor ‘awarded judgment’ the allowance to them of attorney’s fees was erroneous and that counsel fees and costs should have been awarded to plaintiff pursuant tо the terms of the contract.”
See also
Ocean West Contractors v. Halec Const. Co.,
The general rule discussed by the foregoing authorities and cases is the better reasoned rule and should be applied in the present case. Viewing the case in its entirety, it is without doubt the appellant (tenant) was the successful party. The appellee (landlord) was denied recovery in any form on her counterclaim for damages. The appellant’s judgment was expressly affirmed, but was reduced by a small amount for three additional days of rent owed. The appellant prevailed on the main issue presented and therefore was the successful party.
The appellee’s claim that no request was made by the appellant for attorney fees is not supported by the record before this court. In his answer to the appellee’s counterclaim the appellant specifically prayed for attorney fees. In addition, the docket sheеt from the district court reflects that a letter was sent to Judge Gradert by the appellant’s counsel with a statement of attorney fees attached the day the notice of appeal was filed with the district court. It also appears there was some discussion between the parties and Judge Gradert concerning a proposed order regarding the issue of attorney fees which was designated as part of the record in the stipulation filеd by the parties. While this order is not before this court because it apparently was never signed by Judge Gradert, a request for attorney fees was made by *485 the appellant in the pleadings and in post-trial communications between the parties and the court which are documented in the record. The trial court’s reasoning-in failing to award attorney fees to the appellant is not material or necessary to a determination of this issue. K.S.A. 1982 Supр. 61-2709 makes it mandatory on the trial court to award reasonable attorney fees incurred by a successful appellee in an appeal taken pursuant to 61-2709(a). The appellant was the successful appellee in that appeal and is entitled to an award of attorney fees as part of the costs of the action.
The judgment of the lower court is reversed in part and remanded with directions to enter judgment in accordance with this opinion awarding attorney fees.