State v. Herpel

Supreme Court of Kansas

State v. Herpel

203 P.2d 179, 166 Kan. 493, 1949 Kan. LEXIS 352

CourtSupreme Court of Kansas

DecidedMarch 5, 1949

DocketNo. 37,161

StatusPublished

This text of 203 P.2d 179 (State v. Herpel) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Herpel, 203 P.2d 179, 166 Kan. 493, 1949 Kan. LEXIS 352 (kan 1949).

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Opinion

The opinion of the court was delivered by

Wedell, J.:

The state appeals from a judgment refusing to forfeit and sell an automobile as a common nuisance.

Appellee first contends this court is without jurisdiction to entertain the appeal for the reason the appeal is too late and should be dismissed. Judgment was rendered November 5, 1947. A motion for new trial was filed November 8, 1947, in which it was sought to have the judgment vacated, judgment rendered in favor of the state or to grant a new trial. The motion was heard and overruled December 3, 1947, and on the latter date the state served its notice of appeal. It appealed solely from the judgment rendered November 5, 1947, and not from the order overruling its motion for a new trial. The appeal from the judgment was complete when the notice of appeal was served on the county attorney and filed with the clerk of the district court. (Cochran v. Amrine, 155 Kan. 777, 779, 130 P. 2d 605.) But was it in time? [494]*494This is a special proceeding. It is a proceeding in rem and constitutes a civil action. (State v. Hannigan, 161 Kan. 492, 170 P. 2d 138, and cases therein cited.) Being a special proceeding appeals arising therefrom are governed by express provisions of statutes dealing specially with a definite situation. (State v. Curtis, 143 Kan. 984, 987, 57 P. 2d 22.)

The specific statute here” involved and, insofar as material, provides:

“Either the state or any defendant or other person claiming the property seized may appeal from the judgment of the court in any such special proceeding against property seized, in the manner provided for taking appeals in criminal cases, except that the appeal must be taken within ten days, unless the time be by the court for good cause shown extended. . . .” G. SL 1935, 21-2135.) (Emphasis supplied.)

The time for appeal was not extended. The appeal was not taken within ten days from the date of judgment and no appeal was taken at any time from the order overruling the motion for a new trial. It is therefore unnecessary to ascertain whether appellant also failed to comply with statutes pertaining to appeals in criminal cases.

The appeal must be dismissed. It is so ordered.

Arn, J., not participating.

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The opinion of the court was delivered by

Wedell, J.:

The state appeals from a judgment refusing to forfeit and sell an automobile as a common nuisance.

Appellee first contends this court is without jurisdiction to entertain the appeal for the reason the appeal is too late and should be dismissed. Judgment was rendered November 5, 1947. A motion for new trial was filed November 8, 1947, in which it was sought to have the judgment vacated, judgment rendered in favor of the state or to grant a new trial. The motion was heard and overruled December 3, 1947, and on the latter date the state served its notice of appeal. It appealed solely from the judgment rendered November 5, 1947, and not from the order overruling its motion for a new trial. The appeal from the judgment was complete when the notice of appeal was served on the county attorney and filed with the clerk of the district court. (Cochran v. Amrine, 155 Kan. 777, 779, 130 P. 2d 605.) But was it in time? [494]*494This is a special proceeding. It is a proceeding in rem and constitutes a civil action. (State v. Hannigan, 161 Kan. 492, 170 P. 2d 138, and cases therein cited.) Being a special proceeding appeals arising therefrom are governed by express provisions of statutes dealing specially with a definite situation. (State v. Curtis, 143 Kan. 984, 987, 57 P. 2d 22.)

The specific statute here” involved and, insofar as material, provides:

“Either the state or any defendant or other person claiming the property seized may appeal from the judgment of the court in any such special proceeding against property seized, in the manner provided for taking appeals in criminal cases, except that the appeal must be taken within ten days, unless the time be by the court for good cause shown extended. . . .” G. SL 1935, 21-2135.) (Emphasis supplied.)

The time for appeal was not extended. The appeal was not taken within ten days from the date of judgment and no appeal was taken at any time from the order overruling the motion for a new trial. It is therefore unnecessary to ascertain whether appellant also failed to comply with statutes pertaining to appeals in criminal cases.

The appeal must be dismissed. It is so ordered.

Arn, J., not participating.

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203 P.2d 179, 166 Kan. 493, 1949 Kan. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-herpel-kan-1949.

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