Babb v. City of Wichita

The opinion of the court was delivered by This is an appeal from an order of the district court vacating a judgment and granting a new trial in an action brought to enjoin the assessment of certain property for a portion of the costs of paving a street in the city of Wichita. For the sake of clarity, appellee Virginia Babb will be referred to as plaintiff and the appellants, City of Wichita, the Board of City Commissioners consisting of W.C. Salome, L.A. Donnell, Earl K. Duke, F. Russell Jump and Floyd D. Amsden, and C.C. Ellis, City Clerk, as defendants. The facts insofar as they are pertinent to the issues involved herein may be stated as follows: Plaintiff filed suit in the lower court seeking to enjoin the defendants from assessing her property with a portion of the costs of paving Yale Boulevard; after several amendments to her petition, issues were joined between the parties and on December 20, 1950, a pretrial conference was called pursuant to G.S. 1949, 60-2705 and 60-2902. This conference was held before a judge pro tem and extended throughout two days. The parties stipulated to most of the facts and to admission of exhibits in support thereof. Certain of plaintiff's allegations contained in her amended pleading were by the court ordered deleted. At the conclusion of the conference the court proceeded with the trial. Plaintiff offered certain oral testimony to support issues not agreed upon at the conference, which testimony was rejected by the court on the ground it was immaterial. At the conclusion of plaintiff's evidence, defendants demurred to the facts as admitted and the petition as amended on the ground that they failed to state a cause of action against the defendants. At this point the plaintiff's counsel objected to argument of the demurrer for the reason that the record was not complete as to the facts and a dispute remained as to many of them, whereupon the court sustained defendants' demurrer and made certain findings of fact and conclusions of law and rendered judgment thereon on December 21, 1950. On December 22, plaintiff filed a motion for a new trial (G.S. 1949, 60-3003) and on December 26, 1950, filed her amended motion for a new trial alleging as grounds, abuse of the court's discretion; that plaintiff was not offered a reasonable opportunity to present her evidence and to be heard on the merits of the case; erroneous rulings of the court; and that the decision was given under the influence of passion and