Underwood v. Allmon

The opinion of the court was delivered by This appeal presents the single question of whether the filing of an appeal bond as security for costs is necessary to perfect an appeal from a county court to the district court in a civil case under the provisions of K.S.A. 1973 Supp. 61-2102. The facts are undisputed and are as follows: The plaintiffs-appellants, Merle Underwood and Donna Sue Harvey, filed an action of forcible detainer against the defendant-appellee, R.C. Allmon, in the county court of Pratt county. The action sought to recover possession of farmland located in Pratt county. The forcible detainer action was tried in the Pratt county court on August 30, 1973. The court took the case under advisement. On September 10, 1973, the county judge mailed a letter to counsel advising them that he had ruled in favor of the plaintiffs on September 5, 1973. The defendant Allmon filed a notice of appeal in the county court on September 14, 1973, and thereafter mailed a copy of the notice of appeal to plaintiffs' counsel. No application was made by defendant's counsel to the county court to set an appeal bond nor did the defendant file any security for the costs which amounted to $15.15 in the county court. The county judge promptly prepared a transcript for the appeal and filed it in the district court on September 14, [215 Kan. 202] 1973. Three days later on September 17, 1973, the county judge advised the defendant's local counsel that a bond to secure the costs should be filed. Plaintiffs by motion in district court challenged the jurisdiction of the district court, taking the position that a valid appeal was never perfected because the defendant had failed to file an appeal bond as security for costs. The defendant filed a motion in the district court for an order setting the amount of a bond for costs that the defendant should provide and also requested the district court to set an amount for a supersedeas bond. The district court overruled the motion to dismiss the appeal holding that the filing of a bond to secure the costs was not a necessary requirement to perfect an appeal to the district court from the county court. The district court then proceeded to determine the case on the merits, holding that the defendant was entitled to judgment as a matter of law since the plaintiffs had failed to serve a proper notice to terminate the tenancy. Plaintiffs have appealed to this court raising the single issue as to whether or not a valid appeal was ever perfected from the county court of Pratt county to the district court.