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• Title: Smith v. Kansas Turnpike Authority
• Author : Supreme Court of Kansas
• Release Date : January 10, 1958
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 59 KB

Description

The opinion of the court was delivered by The sole question presented is whether the Kansas Turnpike
Authority is required to give a bond for costs as prescribed in
G.S. 1957 Supp. 26-102 to perfect an appeal to the district court
from an award of commissioners in an eminent domain proceeding. Two contentions are presented by the Authority. First, that it
is a state agency, and as such, is exempted by G.S. 1949, 60-2401
from giving such a bond. We are not persuaded the contention is
meritorious. That statute provides in part:

"In any civil action hereafter brought in any
district court of this state, before the clerk shall
issue summons there shall be filed in his office, by
or on behalf of the plaintiff, a bond to be approved
by the clerk (to pay all costs) . . . And provided
further, That in case the plaintiff is the state, or
any county, city, township, school district or board
of education of this state, or any board or officer
thereof, acting in his official capacity, no such
bond for costs shall be required." (Emphasis
supplied.)

The statute is a part of the code of civil procedure and is
clearly applicable only to civil actions brought in the district
court. A proceeding in eminent domain instituted before a judge
of the district court pursuant to G.S. 1957 Supp. 68-2006, G.S.
1949, 26-101 and G.S. 1957 Supp. 26-102 is a special statutory
proceeding in the nature of an inquest to which the code of civil
procedure is inapplicable. (G.S. 1949, 60-3823; State Highway
Commission v. Griffin, 132 Kan. 153, 155, 294 P. 872; Glover
v. State Highway Comm., 147 Kan. 279, 282, 286, 77 P.2d 189;
State v. Boicourt Hunting Ass'n, 177 Kan. 637, 643, 644, 645,
282 P.2d 395; Kansas Homes Development Co. v. The Kansas
Turnpike Authority, 181 Kan. 925, 929, 317 P.2d 794.) The code
is applicable only in the event "an action shall be docketed" by
timely appeal by the petitioner, the owner, or any lien holder of
record. An appeal is perfected by the filing of a written notice
of appeal with the clerk of the district court and giving bond
for the costs thereof, to be approved by the clerk within 30
days from the date the appraisement is filed by the
commissioners. Jurisdiction of the district court is acquired in
such actions by the filing of the required notice and bond for
costs. (Glover v. State Highway Comm., supra; Russell v. State
Highway Comm., 146 Kan. 634, 73 P.2d 29, rehearing 147 Kan. 297,
77 P.2d 199; Jensen v. City of Chanute, 146 Kan. 162,
[183 Kan. 160]

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