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The opinion of the court was delivered by VALENTINE, J.: This was an action on a promissory note and mortgage. The defendants, P. L. Hubbard and Ellen R. Hubbard, pleaded the statute of limitations, and whether that statute bars the action, or not, is the principal question in the case. The facts of the case, so far as they affect this question, are substantially as follows: On or about the 1st day of October, 1869, John M. Price purchased of the Missouri Valley Life Insurance Company ten thousand dollars worth of stock in that company, for which he was to pay $1,500 in cash and to give his note for $8,500. An arrangement, however, was made that the company should loan him the $1,500 which he was to pay in cash, and that he should give his note and mortgage for that amount also. Price therefore gave his note and mortgage for $1,500, which note was dated October 1, 1869, due in one year, with interest at the rate of twelve per cent, per annum, payable semiannually. This is the note and mortgage upon which this action was brought. Price also at the same time gave his note for $8,500. But on April 19,1870, this last-mentioned note was canceled, and a new note and mortgage were executed in lieu thereof. The new note and mortgage were for $8,500, dated April 19, 1870, due iu three years, with interest at the rate of twelve per cent, per annum. There was a misunderstanding with reference to this note and mortgage. The note and mortgage were given, not only for the purpose above stated, but also for the purpose of helping to create available assets for the insurance company; and Price understood that he was not only not to pay interest on this note and mortgage, but that the company should pay him interest thereon for the use of the same at the rate of twelve per cent, per annum. Upon this point the court below found in favor of Price. McKay, the president of the company, and with whom Price did the business, understood the' arrangement differently. He understood that he merely informed Price that the company would‘ declare a dividend to each stockholder who gave such a note and mortgage as Price gave, amounting to twelve per cent, per annum on such note and mortgage, and then that the parties should let the dividend and the interest offset each other. The directors of the company claimed and declared that McKay had no authority to agree that the company should do any such thing, as Price understood that he did, and they never ratified or confirmed McKay’s agreement, as Price understood it. Price paid the interest on the $1,500 note and mortgage, as the same became due, up to April 1, 1872, (paying the same in cash,) and the payment of April 1, 1872, was the last payment he ever made in cash on the note and mortgage, and the last payment made in any manner until after the note and mortgage are supposed to have been barred. After the $8,500 note and mortgage became due (sometime in 1873 or 1874), they were returned, to Price and canceled, and Price surrendered to the company a corresponding amount of the capital stock of the company, which was also canceled. Price, at that time and afterward, claimed that the company owed him said twelve per cent, interest on said $8,500 note and mortgage, and also claimed that the company owed him for services. The company, however, did not recognize these claims of Price, although it seemed to assent that something might be due him for interest and services. On May 16, 1877, a settlement was finally had between Price and the company, and the terms of such settlement are as follows: “LeaveNWORTh, KaN., May 16, 1877. “Memorandum of settlement this day made between John M. Price of Atchison, Kansas, and the Missouri Valley Life Insurance Company of Leavenworth, Kansas. The said John M. Price is to be credited seven hundred and sixty-five dollars on his note of fifteen hundred dollars, dated October 1st, 1869, and secured by mortgage. The above credit is to be made as of the nineteenth day of April, 1873, leaving a balance due on principal and interest, April 1st, 1877, $1,354.20. The above credit of $765 in full payment of all indebtedness of said company to said John M. Price for services or otherwise. ■ (Signed) D. M. SwAN, President. JOHN M. Pjrice.” It will be seen that no payment was made on the $1,500 note and mortgage (the instruments sued on in this action) from April 1, 1872, until May 16, 1877. This was more than five years. The note and mortgage were therefore ab~ sol.utely barred by the five-year statute of limitations when this last payment was made, (Civil Code, §18, sub. 1.) This case will therefore come within the decision of this court made in the case of Schmucker v. Sibert, 18 Kas. 105, 110, 111: that is, Price gave a note, and to secure its payment, executed a mortgage on certain real estate; he then conveyed the real estate to Hubbard; the note and mortgage became due, and several payment's of interest were made thereon; but after that payment of the interest which was made on April 1,1872, was made, more than five years elapsed before any other payment was made thereon. The note and mortgage, therefore, by this lapse of time, without anything being done in the meantime to keep them alive, became absolutely barred by the five-year statute of limitations. Price then, by a payment thereon, and by an acknowledgment in writing of an existing liability thereon, revived the note and mortgage as against himself; but he did not and could not revive them as against Hubbard. As against Hubbard, they still remained barred. The mere fact fhat Price, at the time and before and after the note and mortgage became barred, had a valid claim against the insurance company for $765, which he contended should have been used as a payment on the note and mortgage, and which claim he could have used as a set-off to the note and mortgage if he had been sued thereon, cannot make any difference with regard to the running of the statute of limitations. The claim was not in fact used as a payment on the note and mortgage until after the note and mortgage were barred. And it does not seem that there was any mutual understanding between the parties that it should be so used. The court below does not find that there was any such mutual understanding, nor, indeed, that there was any understanding that anything but a real payment of cash should be considered as a payment on the note and mortgage; And there is no positive or affirmative showing anywhere in the record that the insurance company ever recognized the claim •of Price until after the note and mortgage were barred, and probably it never did so recognize it until after that time. There was a misunderstanding about it. Although the $8,500 note and mortgage drawing interest at the rate of 12 per cent, per annum were executed on. April 19, 1870; and although Price, according to his understanding, should have received interest on such note and mortgage from that time at the rate ■of 12 per cent, per annum, yet he did not receive such interest, nor have the amount of the same credited on the $1,500 note .and mortgage now sued on; but he continued to pay the interest ■in cash on said $1,500 note and mortgage up to April 1,1872. This shows that there was no mutual understanding that any claim of Price for interest, or any claim for anything else, was ■to be credited upon the $1,500 note and mortgage, as a payment or part payment thereon, of either principal or interest. The judgment of the court below, so far as it affects the plaintiffs in error, P. L. Hubbard and Ellen R. Hubbard, will be reversed, and judgment will be rendered in their favor for costs. In other respects, the judgment of the court below will not be disturbed. Brewer, J., concurring. HoutoN, C. 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The opinion of the court was delivered by Brewer, J.: David Douglas, the defendant in error, a resident of Saline county, on August 21, 1876, commenced his action in the district court of said county, against P. D. Beckwith, the plaintiff in error, who then was and now is a resident of the state of Michigan, by filing a petition and also an affidavit for an order of attachment and for garnishment. On the same day an order of attachment was issued, directed to the sheriff of that county, which order was returned and filed by the clerk of said court on August 23, 1876, with a return by the sheriff that no property could be found, and that a certified copy of the order had been delivered to P. L. Gephart and M. M. Briggs, the persons named in the affidavit of Douglas as being indebted to Beckwith. On the 21st of August, 1876, a notice of garnishment was issued by the clerk of that court, and was personally served on Gephart and Briggs. An affidavit for service by publication having been filed, on August 26, 1876, the first publication was' made, the last being September 9, 1876. On December 8, 1876, judgment-by default was rendered against Beckwith in favor of Douglas, for the sum of $420 and costs of suit. On the same day Briggs and Gephart answered as garnishees, and the court found from their answers that they had certain notes of Beckwith’s in their possession amounting to $700, and the sum of $16.60 in money; and they were ordered to pay the money and deliver the notes to the clerk of the court, which order they complied with and were discharged. On October 27,1877, Beckwith by his attorneys caused to be served upon Douglas a notice of his motion to open the judgment and to be let in to defend. On December 3, 1877, upon hearing thereof, both parties appearing by attorneys, the court upon consideration sustained the motion, vacated and set aside the judgment in the action, let the defendant in to defend, and rendered judgment and awarded execution for costs against Beckwith. On December 5, 1877, Douglas filed his motion to vacate and set aside the order and judgment of December 3, 1877. On December 21, 1877, the court sustained his motion and vacated its order of December 3, 1877, and held Beckwith’s motion for future action, to which order and judgment Beckwith duly excepted. On December 30, 1878, Beckwith’s motion, in pursuance of the order of the court, again came on for hearing, when to support it Beckwith filed his affidavit and exhibits thereto attached, and Douglas, to maintain the issue on his part, filed his ¿ffidavits and exhibits thereto; whereupon the court overruled Beckwith’s motion, refused to open the judgment and let him in to defend, to which order, ruling and judgment he duly excepted: whereupon, and within the time granted by the court, Beckwith made his “case-made” and filed the same, together with his petition in error, in this court. The first question raised is as to the time of publication. The first publication was as stated, on August 26. • Answer day was October 6. Answer day by statute must be “ not less than forty-one days from the date of the first publication.” (Code, §74.) To make the forty-one days in this case, the answer day must be included, if the day of the first publieátion be excluded. But that is the statutory rule .of computation, (Code, §722,) and a rule already adjudged ap plicable to a computation based upon exactly the same language, “ not less than — days.” (Warner v. Bucher, 24 Kas. 478.) Further, the appearance of defendant on October 27, 1877, was a general appearance. There was no challenge of the sufficiency of the service. Impliedly conceding the regularity of the proceedings, he applied for the statutory right of a defendant served by publication only to have the judgment vacated, and be heard in defense of the suit. The motion in no manner challenges the service. (Cohen v. Trowbridge, 6 Kas. 385.) Such an appearance unquestionably brings a party into court. He was in this case, however, regularly served. It is objected that the notice of publication is defective in the description of the property seized, and to be sold in satisfaction of the judgment. The notice names “roller grain drills,” in the hands of Briggs & Gephart, etc. The journal entry of the judgment contains this recital: “And now also, on this day, P. L. Gephart, one of the firm of Briggs & Gephart, came into court and answered as garnishee herein. Answering to the notice of garnishment served upon the said Briggs and Gephart on the 21st day of August, 1876, and upon the answer of said garnishee, it is found by the court that the said Briggs & Gephart, a firm composed of M. M. Griggs and P. L. Gephart, have in their possession certain notes taken in payment for roller grain drills sold by them, amounting to $700, as well as $16.60 in money belonging to and the property of the said P. I). Beck-with. It is further found by the court that the said notes and . money are held in the hands of the said Briggs and Gephart, under and subject to the attachment proceedings herein, and the said notes and money are all the proceeds of certain roller grain drills which were in the hands of the garnishee at the time of service of the notice of garnishment herein.” Now it has already been held that a notice of publication need not describe the property, when as in this case only personal property is attached. (Race v. Malony, 21 Kas. 31.) Farther, the judgment shows that the notes and money which were ordered turned over to the clerk of the court were simply the proceeds of the sale by the garnishees, Briggs & Gephart, of certain roller drills in their hands at the time of the service of process. Such action by garnishees does not oust the court of jurisdiction, and it may by its order and judgment appropriate the proceeds of property sold, as well as order the sale itself in the first instance. Again, the court first entered an order vacating the judgment and giving the defendant an opportunity to defend; then a few days thereafter it set aside this order and continued the hearing of the motion to open up the judgment, and more than a year thereafter upon final hearing overruled and denied it. Counsel denounce this as “a shuttlecock way of doing business.” Yet if upon all the facts and on final hearing it is apparent that the judgment ought not to be opened, whatever may be said as to the manner in which this result was reached, it cannot be adjudged that the 'court erred in denying the motion. And we think the motion was properly denied. Sec. 77 of the code, concerning the opening-up of judgments rendered upon service by publication, provides as one condition that the party shall “ make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in and make his defense;” and also provides for counter affidavits upon this question. This action was commenced August 21, and judgment rendered December 28, 1876 — more than three and one-half months thereafter. Defendant was a resident of Michigan, and Briggs & Gephart were his agents at Salina. Plaintiff claimed to have been authorized by defendant to act as his agent in the sale of certain roller drills, and that after he had made a number of sales, defendant refused to honor his orders or send the drills. Out of this grew-the present action. Now what notice did Beckwith have? In July, Douglas wrote, threatening a suit. July 21, 1876, Beckwith wrote to Douglas, evidently in answer to the latter’s letter, in which he refused to do anything, advised Douglas to get drills from B. & G. to meet the sales made, and added: “This will pay you something, and cost less than to have a lawsuit with me. However, please yourself, and I will take .all chances.” Next came to Beckwith the letter of Briggs & Gephart, dated August 25, 1876, stating, “Mr. Douglas has garnished your notes in our hands.” To this he answered, by letter of August 29th, as follows: “Please inform me about the particulars of Mr. Douglas’s garnishee, etc. I have not received any notice of any complaint being made in court.” Then, and we quote from his own affidavit: “Affiant further says, that he did not receive any reply to this letter of inquiry until he received a letter, bearing date of December 8, 1876, from Briggs & Gephart, wherein they make a statement as follows, to wit: ‘How is it that you have allowed this garnishee suit against you to go on and not defend yourself in it? We notified you of the suit of Douglas against you for the sum of four hundred dollars damage, and you have not attended to it. The suit is over with, and the court has issued an order for all the notes and cash in our possession, which we must obey. We are satisfied that you could have gained the suit, had you attended to it.’ “Affiant further says, that he was not acquainted .with the laws of Kansas, and did not know that it was necessary to commence an action in order that proceedings might be had in garnishment, and that when he received no reply to letters of inquiry of the 29th day of August, 1876, he supposed the proceedings mentioned by Briggs & Gephart, in their letter of August 25, 1876, had been dropped.” Then, the judgment being entered December 8th, and this letter of his agents, of date December 8, informing him of the judgment, he waits until October 27'following before he serves notice of his motion to open the judgment and for leave to defend. Now to constitute the “actual notice” specified in the statute, it is not necessary that the defendant be fully informed as to time of commencing suit, the court in which it is commenced, the property that has been attached, the exact amount claimed, the day named for answer, or other details, of the action. It is .enough that he is distinctly and clearly notified that a suit has been commenced and is pending against him, and notified from such a source and within such a time, that by the exercise of ordinary and reasonable care and prudence he can ascertain all details and make his defense. And where a good and meritorious defense is presented, courts will not scan too closely or technically any omission to pay prompt attention to uncertain and indefinite notices. But here the plaintiff a month beforehand notifies him that suit will be commenced unless he complies with an alleged contract. He replies, advising a certain course; says it will cost less than this threatened law suit, but at the same time tells the plaintiff to please himself and he will take all chances. Where- ■ upon suit is brought, and his property is attached. His agents notify him that this party threatening suit has garnished his property in their hands. This notice reaches him more than three months before judgment is rendered. He replies instantly to his agents by letter, asking for information. He receives no reply, presumes the matter at an end, and after three months receives a letter from his agents telling him that the suit has gone against him, and that they must turn the property in their hands over to satisfy the judgment. Nine months after this h.e comes in and asks to be relieved, because he says he had no notice. Surely it cannot be said that he did not have notice. A party threatens suit; he tells him to go ahead; suit is brought; his agents tell him it has been brought; he writes for particulars; they make no reply; he presumes it is abandoned, and takes no further action. Because he did not know of the court in which the suit was brought, or any of the details of the action, can' it it be said that he did not know of the suit? He says he supposed the proceedings had been dropped. What proceedings ? Why, of course, the garnishment proceedings of which he had received notice. The failure of his agents to respond to his letter of inquiry, his belief founded thereon that what had been commenced had been abandoned, in no manner affect the question of actual notice from a responsible source. The ruling of the district court was correct. The defendant did - have notice. Evidently the explanation, which his letters suggest, is correct, that in the pressure of larger and more profitable business he forgot these roller drills and the litigation growing out of his dealings with them. The judgment will be affirmed. All the Justices concurring.	[ -16, 104, -71, -99, 42, 96, 34, -118, 83, -77, 51, 115, -115, -126, 9, 121, 103, 41, 113, 107, 66, -77, 7, 99, -42, -13, -95, -35, 49, 77, -12, -57, 77, 32, -54, -99, -58, -64, -57, -38, -50, -128, 41, -17, -45, 8, 48, 57, 22, 75, 97, 62, -29, 46, 29, -61, 41, 45, -21, 57, 88, -16, -69, -121, 89, 6, -111, 2, -104, 7, 72, 46, -100, 49, -126, -8, 122, -74, -122, -12, 101, -101, 44, 110, 98, 0, 53, -27, -88, 40, -116, -2, -99, -89, -107, 73, 73, 72, -66, -99, 100, 22, 7, -2, -25, -113, 17, 108, 2, -54, -16, -75, 31, 56, -110, 73, -61, 34, 36, 113, -59, -56, 92, 71, 58, 25, -49, -15 ]
The opinion of the court was delivered by HORTON, C. J.: This was an action for trespass against the road overseer for opening a road on the land of plaintiff. It was tried before a justice of the peace, and afterward appealed to the district court. There the case was submitted upon the following agreed statement of facts: “At the commissioners’ court of Clay county, Kansas, the board appointed viewers to locate a road in Highland township, in said county and state, over the land of the plaintiff. The record of the said board shows that notice of the time the viewers would meet was given by publication in a newspaper and by setting up a notice in the county clerk’s office as required by law, but no notice was set up or posted in Highland township, the only municipal township through which the road runs or passes; that the plaintiff waived the six days’ notice required by law, presented his claim to the board of county commissioners and then appealed his claim to the district court, and at its January term obtained a judgment for $16. It is further agreed that the defendant committed the trespass complained of as road overseer in opening the road as ordered by the board.” It is contended by the plaintiff that the road is wholly void, for want of jurisdiction on the part of the board of commissioners to establish the same or to order it opened. This upon the theory that no notice was set up as required by §3, ch. 108, Laws of 1874, in the township where the road was located. Whatever may be the general effect of not giving the notice, we need not now consider. The plaintiff is in no condition to question the validity of the proceedings of the couuty board in establishing and opening the road over his own land. He waived notice of the meeting of the viewers, presented his claim for damages to the board, thereafter appealed from its-decision to the district court, and recovered upon his claim. He has obtained a judgment for compensation for the location and opening of the road on his premises, and after having proceeded thus far he cannot- now be heard to object to the validity of the road. Neither can he maintain any action for trespass against the road overseer in open ing the road upon his land under the order of the county board. Even if there were any irregularities in the preliminary or other proceedings, he has consented to the location and opening of the road and recovered damages therefor, and it.would be an act of gross injustice now to allow him to'for- ' bid the opening of the road, or to make an officer liable for trespass in carrying out the orders of the county board. The judgment of the district court will be affirmed. All the Justices concurring.	[ -12, 108, -40, -116, -21, 96, 58, -104, 105, -79, 32, 83, -19, -62, 4, 59, -10, -83, 85, 107, 68, -78, 119, -61, -14, -13, -45, 77, -77, -51, -10, -42, 76, 48, 10, 21, 70, 72, -121, -44, -114, -121, 9, 76, -47, 72, 56, 59, 16, 79, 81, 62, -29, 46, 25, -61, -87, 44, -53, -91, -104, -16, -67, -41, 95, 6, 35, 6, -100, 7, 104, 43, -104, 57, -120, -8, 87, -90, -106, 116, 15, -103, 8, -74, 99, 1, 116, -57, -24, -103, 15, -14, 29, 39, -74, 24, 75, 0, -106, -103, 117, 114, 70, 126, -26, 4, 89, 44, 3, -53, -80, 85, -49, 60, -102, 69, -13, 1, 48, 97, -57, -26, 91, 99, 50, 27, -113, -111 ]
The opinion of the court was delivered by Brewer, J.: This action was begun in the district court of Anderson county, on the 17th day of May, 1880. The plaintiff’s petition alleges that, on or about the 15th day of July, 1858, Joseph C. Wilson executed his promissory note for the sum of $240, payable to Hamilton G. Fant, due one year after date, with 40 per cent, per annum, as interest thereon from date, and that at the same time, defendants Joseph C. Wilson and Sarah Wilson, in order .to secure the payment of the note, made a mortgage to said Hamilton G. Fant, on the S.W.-J of sec. 31, township 20, range 20, in Anderson county, Kansas, and promised and agreed in said mortgage to pay a rea.sonable attorney’s fee in ease of a foreclosure thereof; that said mortgage is duly recorded in the Pawnee land district record ■office at Lawrence, Kansas; that Wilson and wife left Kansas ■soon after executing the note and mortgage, and have ever ■since been beyond the limits of the state of Kansas; that the note is due and unpaid; that in April, 1880, Hamilton G. Fant duly assigned the note and mortgage to Thomas M. Pattie, plaintiff; and that ten per cent, on the amount of principal and interest is a reasonable attorney’s fee for foreclosing •said mortgage; and that the defendants Reber, McCarty and W. R. King claim some interest in the mortgaged premises, but whatever interest they, or either of them, may have, is inferior, subsequent, and subject to the lien of said plaintiff; and prays for judgment, and an order of foreclosure of the mortgage, and a sale of the mortgaged premises, etc. The defendant W. R. King in his answer admits the truth ■of all the allegations of plaintiff’s petition, and alleges that he is the owner of the mortgaged premises, and is entitled to the surplus proceeds arising from the sale thereof, after ■satisfying plaintiff’s claim and costs of suit. The defendants W. S. Reber and Thomas McCarty, in their answer to the plaintiff’s petition, say: “1. That they deny each and every allegation therein set forth, except such as are thereinafter admitted. “2. That the plaintiff is not the real party in interest, and' is not the bona fide holder and owner of. the note and mortgage set out in plaintiff's petition. “3. That the note and mortgage were paid by Wilson. Shannon in 1858, and that Shannon was the agent of Hamilton G. Fant from 1856 to 1868, and as such agent he settled the note and mortgage with Joseph C. Wilson by taking a conveyance to himself of said land, with the full knowledge and consent of H. G. Fant, which conveyance was duly made to Wilson Shannon, and the note and mortgage were thereby paid off and released; and that said note and mortgage were paid prior to the eommeneemeht of this suit. “4.. That Joseph C. Wilson and wife, on the 26th day of' July, 1858, conveyed the lands described in plaintiff's petition to Wilson Shannon, who has ever since been a resident of the state of Kansas, and in September, 1866, Shannon and wife-duly conveyed the land to James Reber by warranty deed; that W. S. Reber, as administrator, conveyed the land to L. M. Ernest, and L. M. Ernest and wife thereafter conveyed said land to Thomas McCarty, who now owns said land, clear from all incumbrances, without the knowledge off the claim of Fant or said plaintiff; and neither did any off the owners of said land subsequent to Joseph C. Wilson, defendant, have any knowledge or notice of any claim of H. G. Fant or the plaintiff; that the defendant McCarty is in the actual possession of the land, and that all of the said grantees have been in possession thereof and residents of the state óf Kansas for twenty years last past, and no action 'has been, brought on the note and mortgage set out in plaintiff's petition, within five years, or fifteen years after said right of action (if any such right of action there was) ever accrued. “5. That defendant William R. King claims some interest-in or to said land, under a deed from Joseph C. Wilson and wife to him, subsequent to the deed under which W. S. Reber and Thomas McCarty claim title, and asks to quiet this title as to King." The plaintiff’, in reply to the answer of W. S. Reber and Thomas McCarty, denies all new matter stated therein, and, this reply is verified by the affidavit of plaintiff. William. R. King replies to the answer of defendants W. S. Reber and-. Thomas McCarty, and denies that Joseph C. Wilson and wife-ever made a deed of the land to Wilson Shannon on the 26th. day of July, 1858, or at any other time; and that Wilson Shannon never was the owner of said land; and that William R. King is the owner thereof in fee simple; and that the pretended conveyance to the parties named in their answer is and was void. This reply is sworn to by the attorney for King. Defendants W. S. Reber and Thomas McCarty file a reply to the answer of William R. King, and deny generally all the matters therein stated without verification. These are substantially the issues joined between the parties. Joseph C. Wilson and Sarah Wilson were duly notified of the filing of the petition and the pending of the suit, by 'publication, and made default. The trial resulted in a judgment in favor of defendants, and plaintiff alleges error. The case was tried by a jury, which returned answers to special questions submitted, and upon those answers the judgment was rendered. The only controversy in this case is of course between plaintiff and the defendants Reber and McCarty. King and his relations to the case may be ignored. His quitclaim deed obtained in 1880 signifies nothing. It might have been of value if the judgment had been in favor of the plaintiff. As it is, it is nothing. We proceed therefore to the question of errors as between plaintiff and defendants Reber and McCarty. And first, plaintiff insists that upon the pleadings he was entitled to judgment, and that the court erred in refusing his application therefor. Clearly the ruling of the court was right. Without noticing any other matter, it is sufficient to-say that the title of plaintiff to the note and mortgage was distinctly put in issue. The plaintiff claimed as assignee. No written assignment was shown. The defendants denied generally and denied specifically plaintiff’s interest and title. It is true the answer was not verified, but only certain allegations are admitted by a failure to answer under oath. Among them are “allegations of the execution of written instruments and indorsements thereon.” (Code, §108.) The execution of the note and mortgage may be considered as admitted ; but an assignment of the claim, not alleged to have been in writing, is not admitted. A parol assignment would have sustained the allegation in the petition, and a parol assignment is not admitted by a failure to verify a denial. (Washington v. Hobart, 17 Kas. 275.) Again, error is alleged in rejecting evidence offered of declarations made by the mortgagor. These declarations were not made under such circumstances as to work an estop-pel, or to have been the inducement to plaintiff's purchase; but were offered simply as evidence of the fact that the note and mortgage were not paid. Without stopping to inquire whether there was' any error in rejecting this testimony, it does not appear that the error, if any, worked any prejudice to the material rights of plaintiff, for the mortgagor was himself a witness, and testified that they had not been paid. He detailed the whole transaction as he understood it. Now plaintiff’s case would not have been strengthened by proof that Wilson had stated out of court just what he testified to in court. If Wilson had been dead, or if his testimony was not obtainable on the trial, then the question might fairly arise, whether there was not material error in rejecting evidence of his declarations. We pass now to the really important questions in the case, which are, whether Reber and McCarty were in a condition to raise the question of payment; and if so, whether there was evidence sufficient to sustain the jury’s finding of payment. Upon these questions, these facts should be noticed : The mortgage was given July 15,1858, and was for the purchase of a land warrant with which the land was entered. In April, 1880, nearly twenty-two years thereafter, the payee and mortgagee made an assignment to plaintiff, the note and mortgage having themselves disappeared during those years. The mortgagee was a banker in Washington, D. C. The papers were at first in the hands of a cousin living in Kansas, but the latter leaving to go into the confederate service in 1861, they were passed to Gov. Wilson Shannon, who acted for a series of years as the agent and attorney of the mortgagee, and were probably destroyed at the time of the Quantrell raid upon Lawrence. A deed in proper form, of date July 26, 1858, from the mortgagor and wife to Wilson Shannon, was in evidence, and defendants’ record title was founded upon this deed and a conveyance from Shannon. In reference to the deed, these seem to have been the facts: There was some talk of occupying this land for a town site, and immediately after the land was entered, one Dr. Bowen made an arrangement for its purchase. He paid $600 down, and was to have title when he paid off the note and mortgage. A deed was prepared and executed by the mortgagor, complete in every respect except the name of the grantee. This was to be filled in with the name of Dr. Bowen,.or that of the town company, as the doctor should determine, and should be so filled in and delivered when the doctor paid off the note and mortgage. The land was not taken for a town site, the doctor did not pay off the mortgage, and Gov. Shannon, coming down to foreclose the note and mortgage, in some way got possession of the deed, had his own name filled in as grantee, and instead of foreclosure and sale, thus attempted to collect the debt. The defendants had been in possession for years, and had made valuable improvements. Now the argument of plaintiff is, that the mortgagor having been a non-resident of the state since 1860, the note and mortgage were not barred by the statute of limitations, and that as the deed to Shannon was void and passed no title, defendants were'not in any position to question the present validity of the note and mortgage, or a decree in favor of plaintiff. But this is as broad as it is long. If they have no rights in this land, they should not have been made parties. So long as plaintiff has made them parties, if they have any rights in the land they.may defend them against every opponent. Mere possession becomes the basis of title, and a party having that possession may defend it as against anyone who seeks to establish a right which if enforced will destroy-that possession. If these defendants had not been made parties, plaintiff could have obtained a decree of foreclosure and sale against the mortgagor, and then, receiving a deed in such foreclosure prooeed- ings, could have litigated in an action of ejectment their rights in the premises. By making them parties in this action he simply anticipates, but he deprives them of no rights. Every defense which they could interpose if sued in ejectment they can interpose now. In short, no mere timé or form destroys-rights. Plaintiff, by making these parties defendants, invites them to defend, and in that defense they may avail themselves of every objection to plaintiff’s claim. So that though their record title may fail by reason of the invalidity of the deed to Shannon, yet they may defend because of the rights acquired by long-continued possession. Mere possession, if not title, is the basis, of title. Defendants held possession, with claim of title. Such possession, will with years perfect title. The holder of it may make full defense. (Bradley v. Parkhurst, 20 Kas. 462.) Was there evidence to sustain the finding of payment? In reference to this it may be said that very slight evidence will sustain such a finding asdo a debt twenty-two years old. The very inaction of the holder of the claim during these years is strong evidence of payment. No individual, much less a banker, permits a debt, secured by mortgage, to go a score of years, undischarged and uncollected. And there was evidence of payment, beyond the mere lapse of time. One witness testified that on looking over the list of Kansas notes and mortgages held by Fant and kept by the latter, he saw this marked as settled, and that Fant told him it had been settled by Gov. Shannon. The latter was the agent.and attorney of Fant during those years. He received an apparent title at least, and then sold the land and executed a conveyance. His action remained unchallenged for nearly a score of years. Neither mortgagor nor mortgagee questioned. The principal did not call the agent to account. Not until Gov. Shannon died is any attack made upon the transaction. Then the mortgagor is visited in Illinois, and a quitclaim deed obtained, for which three dollars are paid. An assignment is obtained from the mortgagee, and foreclosure is commenced. Now under these circumstances, it cannot be said that there was nothing upon which to rest the finding of payment. We think there was abundance. There being no other questions in the case, the judgment will be affirmed. All the Justices concurring.	[ -13, 104, -80, 126, -40, -32, 40, -102, 11, -79, -92, 115, 105, -56, 0, 105, 102, 45, -107, 105, 100, -77, 23, -56, -110, -13, -47, -35, -79, 93, -28, -41, 73, 48, 74, -99, -58, -62, -59, 84, -114, -123, -119, -48, -45, 64, 52, -5, 114, 72, 21, 46, -13, 40, 61, 66, 77, 46, -37, 41, -48, -79, -117, -107, 93, 31, 17, 102, -36, 71, 72, -86, -112, 53, 1, -24, 115, -90, -122, -12, 71, -101, 45, 38, 103, 51, -76, -21, -88, -104, 14, -42, -113, 39, -77, 72, 98, 32, -66, -99, 117, 16, 7, -2, -17, 21, 25, 108, 7, -50, -44, -77, -113, 56, -102, 91, -29, -87, -95, 97, -51, 32, 93, -25, 58, -101, -98, -72 ]
The opinion of the court was delivered by Hatcher, C.: This is a second appeal in the case of Fields v. Anderson Cattle Co., 193 Kan. 558, 396 P. 2d 276. It would serve no useful puipose to again set out the issues, the facts, the various controversial rulings and the verdict and judgment. One of the defendants, the Blue Stem Feed Yards, has appealed contending that the trial court erred in approving the general and special findings of the jury, in entering judgment in favor of the plaintiffs where all of the evidence was contrary to the jury’s findings and in overruling its demurrer to plaintiffs’ evidence. At the outset we are confronted with appellees’ motion to dismiss the appeal because Blue Stem Feed Yards has taken a direct appeal in the same case appealed by plaintiffs rather than having filed a cross-appeal. On July 20, 1962, the plaintiffs appealed from the judgments, orders and decisions of the district court which was docketed as No. 43,293. On July 29,1962, the defendant, Blue Stem Feed Yards, filed this direct appeal from the judgments, orders and decisions of the district court, which appeal was docketed as No. 43,304. Our attention is called to G. S. 1949, 60-3314 which provides: “When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which he complains, he shall within twenty days after the notice of appeal is filed with the clerk of the trial court, give notice to the adverse party, or his attorney of record, of his cross-appeal and file the same with the clerk of the trial court, . . ,” The appellant states: “. . . Although all three defendants involved in the action were duly notified of the appeal, Case No. 43,292 [43,293] relates only to the defendant Anderson Cattle Company, Inc. Blue Stem Feed Yards, Inc., is in no way directly involved in that appeal nor is it particularly interested in or affected by the final adjudication of the issues to be considered by this Court in that appeal. . . .” We cannot agree with appellant’s suggestion. One of the chief claims of error in case No. 43,293 was striking from the petition pain, suffering and mental anguish as an element of damages. The contention was seriously controverted by Blue Stem Feed Yards as appellee. The appellants contention that the trial court erred in concluding that Lyon County zoning ordinance did not apply to appellees was also seriously controverted by Blue Stem Feed Yards as appellee. An adverse determination of these issues would have materially affected Blue Stem Feed Yards. The legislature has provided that if an appellee desires a review of rulings and decisions of which he complains, he shall file a cross-appeal. The purpose of the provision is readily apparent. It is to conserve time and expense and eliminate duplication in abstracts, briefs and opinions. The legislature has the power to determine when an appeal may be taken and the manner in which it shall be taken. Kowing v. Douglas County Kaw Drainage Dist., 167 Kan. 387, 207 P. 2d 457; City of Hutchinson v. Wagoner, 163 Kan. 735, 186 P. 2d 243; Union Pac. Rl;d. Co. v. Missouri Pac. Rld. Co., 135 Kan. 450, 10 P. 2d 893; Bowen v. Wilson, 93 Kan. 351, 144 Pac. 251. A second and direct appeal cannot be used as a substitute for a cross-appeal as directed by statute. (Schumacher v. Rausch, 190 Kan. 239, 372 P. 2d 1005.) The appeal is dismissed. APPROVED BY THE COURT.	[ -79, -20, -75, 13, 10, 99, 112, 90, 65, -95, 38, 83, -83, -46, 20, 107, 102, 29, 84, 106, -42, -73, 83, -32, 83, -13, -109, -59, -79, 79, -25, 124, 77, 20, -126, 85, -30, -64, -63, 28, -90, 15, 25, -51, -55, -94, 52, 106, 54, 79, 53, -98, -21, 40, 29, -62, 41, 44, -5, 45, 81, -15, 42, 13, 95, 6, 50, 6, -104, -123, -40, 46, -112, 48, -110, -23, 114, -90, -122, 116, 107, -103, 12, 58, 107, 3, 13, -17, 88, 24, 46, 95, -113, -26, -112, 16, 67, 33, -74, -99, 112, 118, 7, -2, -21, 28, 27, 60, 7, -121, -112, -79, -113, 20, 26, 91, -21, -109, 16, 49, -51, -86, 92, 71, 82, 91, -122, -110 ]
The opinion of the court was delivered by Fatzer, J.: These were actions to recover damages for personal injuries arising out of an automobile accident. Individual actions were brought by appellants E. W. Hendrixon and Max Hamilton, plaintiffs in the district court, against appellee-defendant, Homer Schemahorn. Since the actions involved the same facts, the cases were consolidated for trial. A jury was waived and the case was tried by the district court. No request for findings of fact and conclusions of law was made by any of the parties, and the court made none. After both parties had introduced their evidence and rested, the court took the matter under advisement, and on August 9, 1963, made a general finding in favor of the defendant and entered judgment accordingly. Post trial motions were filed, including a motion for a new trial, which were overruled, and the plaintiffs have appealed. At the outset, it may be said the appellants concede that if the general finding of the district court in favor of the defendant is sustained by substantial evidence, the judgment must be affirmed. On the evening of May 30, 1953, Max Hamilton, an 18-year-old boy and a resident of Cheney, and a friend, Gerald Rodman, a 17- year-old boy, also a resident of that city, were driving around Cheney with E. W. Hendrixon, a man seventy-two years of age, who was the city marshal of Cheney and a deputy sheriff of Sedgwick County. Hendrixon owned his own automobile with a red light on it, which he used to perform his duties as marshal. He had parked his car that evening and was riding with Hamilton and Rodman in Hamilton’s parents’ car. He had on a green uniform and an officer’s cap and was wearing a gun belt and gun. Homer Schemahorn, an 18-year-old boy, lived with his parents on a farm near Milton, a town about 20 miles south of Cheney. About 10:00 o’clock on the evening of May 30, 1953, Schemahorn drove into Cheney at a speed not over 20 miles an hour, made a “U” turn, and left town driving south toward Milton at a speed of about 50 to 60 miles per hour. Hendrixon directed Hamilton to pursue Schemahorn’s car, and a chase ensued. About five or six miles south of Cheney, Schemahorn noticed a car following him with the' lights blinking. The car passed him and stopped in' the middle of the road and he could tell there were three people in the car, but he had no idea who they were. He saw the right-hand door open and a man’s leg stick out and he became frightened because he had been chased out of Cheney a year or two before by teen-age Cheney boys, and because he had read in the paper about somebody getting beat up. When the car stopped, Schemahom did not stop, but was driving “real slow.” When he saw a man’s leg stick out of the car ahead, he put his car in second gear, passed the parked car and attempted to lose it, driving at a high rate of speed on a circuitous route to Milton. The chase continued for several more miles at a high rate of speed over dusty county roads under the direction of Hendrixon and Hamilton was following his instructions. Some distance south of where the Hamilton car stopped, the road went over a railroad grade crossing. As the Hamilton car went over the crossing, its speed was such that it flew through the air for a short distance. After crossing the railroad tracks there was more dust at that point and Hamilton speeded up to 50 or 60 miles an hour which was admittedly faster than road conditions warranted. The road on which the cars were traveling had an unmarked “T” intersection some distance south of the railroad crossing and Schemahom slowed down and went around the comer about five miles per hour with his headlights on. At this point, the Hamilton car was trailing him about three-quarters of a mile. Hamilton failed to see the “T” intersection in time to stop or turn and slid into the ditch and field. Both plaintiffs were severely injured. After turning the comer at the intersection, Schemahorn drove about a mile to a highway eating place known as “Soupee’s” corner, and drank a milk shake. After about 15 or 20 minutes he heard there had been an accident and he went to the scene where he learned that the city marshal of Cheney was in the car, and he later learned that the car involved was the one following him. The accident was bothering Schemahorn and he had no idea why the marshal was following him. On Monday following the accident, he went to see the banker who wrote his automobile insurance and the banker advised him to go see the mayor of Cheney, which he did. The plaintiffs’ witnesses testified that Schemahorn was speeding on the streets of Cheney on the evening of May 30, but he was never prosecuted for any of the traffic violations charged by their testimony. The plaintiffs contend there was no substantial, competent evidence to support the district court’s general finding in favor of the defendant. We do not agree. It is unnecessary here and it would unduly lengthen this opinion to set forth in detail the evidence of the parties. It is sufficient to say the plaintiffs’ evidence was to the effect that the defendant was speeding on the streets of Cheney; that Hendrixon saw him commit the offense and that he commandeered Hamilton’s car to pursue the defendant so Hendrixon could arrest him for that offense; that the chase ensued for several miles over dusty county roads, and that in making the pursuit, Hamilton failed to see the unmarked deadend “T” intersection and the car went into the ditch. The defendant’s evidence was to the effect that he was not driving at an unlawful rate of speed in Cheney; that he did not know the city marshal was in the car following him until after he visited the scene of the accident, and that he had no reason to believe he was being pursued by the marshal for the purpose of arresting him. It is a well-established rule of this jurisdiction that where a case is tried by the district court and a general finding is made in favor of the defendant and no special findings are requested or made, the general finding determines every controverted question of fact in support of which evidence was introduced, and that a general finding by a district court raises a presumption that it found all facts necessary to sustain and support the judgment. (Dryden v. Rogers, 181 Kan. 154, 157, 309 P. 2d 409; Nauman v. Kenosha Auto Transport Co., 186 Kan. 305, 308, 349 P. 2d 931; Browning v. Lefevre, 191 Kan. 397, 400, 381 P. 2d 524; Wycoff v. Board of County Commissioners, 191 Kan. 658, 672, 383 P. 2d 520.) It is equally well settled that in considering evidence on appellate review, a verdict or finding made by the trier of the facts and supported by evidence will not be disturbed on appeal and that findings of fact necessarily embraced in the general judgment rendered by the district court will not be disturbed if there is some, though controverted, evidence to sustain it. (Dryden v. Rogers, supra, pp. 154, 157; Curry v. Stewart, 189 Kan. 153, 155, 368 P. 2d 297; Nichols Co. v. Meredith, 192 Kan. 648, 652, 391 P. 2d 136.) In considering the appellants’ contention, it is sufficient to say that the evidence was conflicting, but implicit in the district court’s judgment was a finding that the events which gave rise to the chase did not create an emergency and that Hendrixon was not justified in commandeering the Hamilton car as an emergency vehicle. Certainly, there were no facts or circumstances giving rise to the commission of a felony, and under the plaintiffs’ evidence the most that can be said is that the defendant committed a misdemeanor, but the district court’s general finding in favor of the defendant was to the effect that he did not violate the law and there was no occasion for Hendrixon to pursue. We have fully considered the record and find there was substantial, competent evidence to support the district court’s general finding in favor of the defendant and we are compelled to affirm the judgment.	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The opinion of the court was delivered by Robb, J.: This is an appeal from the trial court’s order whereby a general demurrer filed by the defendant, appellant herein, was overruled as was also a general demurrer filed by the city of Kansas City, Kansas, a co-defendant. For convenience the appellee will be referred to as plaintiff; Milgram Food Stores, Incorporated, as defendant; and the city of Kansas City, as the city. In substance, plaintiff’s petition alleged the city owned the real property situated at the southeast corner of the intersection of Eighteenth Street and Chelsea Drive in Kansas City. The adjacent property to the south was owned by plaintiff and on the south fifty-one feet thereof plaintiff’s business building was located with plaintiff’s parking area between such business building and the city’s property. Plaintiff’s parking lot was on low ground and was constructed upon large wooden piles driven into the ground so the surface of the lot was elevated and level with the floor of plaintiff’s business building and was also level with North Eighteenth Street upon which the lot fronts. The surface of the lot was made of steel reinforced concrete and asphalt. Prior to March 21, 1962, a creek had for many years followed its natural course southeasterly through the city’s property and the waters had passed safely by and through the northeast portion of plaintiff’s parking lot without any damage thereto. On December 6,1960, the city by ordinance had granted defendant a twenty year franchise to use the city’s property already mentioned herein as a parking lot. All expenses and construction thereof were to be the defendant’s sole obligation. On March 31, 1962, defendant, with the city’s approval as required by the ordinance, had constructed and placed in the ground an artificial channel for the waters of the creek consisting of a box-shaped steel reinforced concrete conduit one hundred five feet long, ten feet high, and twelve feet wide. Thereafter defendant covered the conduit with dirt and the natural channel of the creek was thereby completely filled in. The concrete conduit was so constructed that the open end pointed directly at the northeast portion of plaintiff’s parking lot and especially at the large wooden piles which supported the concrete and asphalt superstructure. There were only twelve feet of space between the open end of the conduit and the supporting wooden piles on plaintiff’s lot. On August 10, 1961, a high water flow due to heavy rain caused thousands of dollars of damage to the wooden piles and the parking surface they supported. Thus a dangerous nuisance was created by defendant and the city who have been advised of plaintiff’s damages but have continued to do nothing in the way of correction thereof. Plaintiff, having no remedy at law, sought mandatory injunction against both the defendant and the city. Count II of the petition set out the amount of damages claimed by plaintiff for damage, dislocation, and moving of the wooden piling supporting the superstructure of the parking lot as well as the cracking and collapsing in the surface thereof proximately caused on August 10, 1961, as heretofore stated. Defendant’s general demurrer attacking plaintiff’s petition was overruled on February 27, 1963, from which order defendant perfected this appeal. The city earlier had likewise filed a general demurrer which had been overruled on July 25, 1962, but the city is not a party to this appeal. Thus we are confronted immediately with a question not raised by either party but one incumbent upon this court to determine and that is with respect to our appellate jurisdiction in this matter. Roth the original and abstracted record before us fail to disclose any attempt on the part of defendant to serve its notice of appeal upon the city, the other defendant, since the notice of appeal was filed April 19, 1963, and was addressed only to the plaintiff herein and its attorneys of record. Service was acknowledged and affidavit of proof of service thereon was waived by plaintiff’s attorneys on the same date. The sole specification of error is stated thus: “The court erred in overruling the demurrer of the defendant, Milgram Food Stores, Inc., a corporation, to the petition of the plaintiff.” Under the circumstances we have no alternative but to conclude the appeal in this case must be dismissed under the authority of G. S. 1949, 60-3306, and cases written in conformity therewith including State v. King, 191 Kan. 318, 380 P. 2d 325, where the appropriate rule was stated: “A notice of appeal of a civil action filed in the district court but which was not served on the adverse party or its attorney of record gives this court no jurisdiction of the appeal." (Syl.) In St. Francis Hospital & School of Nursing v. Lane, 191 Kan. 349, 381 P. 2d 353, the above rule was reiterated in syllabus ¶ 2, and at page 351 basic reasons for the rule, and numerous authorities in support thereof, were discussed. More recently in Graham v. Barber, 192 Kan. 554, syl. ¶ 2, 390 P. 2d 23, an appeal was taken from the trial court’s judgment sustaining a demurrer to plaintiff’s opening statement as to one of two defendants, and we held the remaining defendant was a necessary party and failure to issue and serve notice of appeal thereon required dismissal of such appeal. The same is true in this case. Appeal dismissed.	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The opinion of the court was delivered by Wertz, J.: Plaintiff (appellee) Perry D. Hornback brought this action against defendant (appellant) Missouri-Kansas-Texas Railroad Company, a corporation, under the provisions of the Federal Employers Liability Act seeking damages for personal injuries claimed to have been sustained by plaintiff by reason of the alleged negligence of the defendant. Issues were joined between the parties in the action and the case was tried to a jury which returned its answers to certain special questions submitted to it by the court and a general verdict in favor of the defendant. Plaintiff filed a motion for a new trial setting forth seven specific grounds of al leged error committed in the trial. The trial court, after hearing arguments of counsel and reviewing the briefs filed by the respective parties, granted a new trial on its own motion and upon the motion filed by plaintiff. This appeal is from the trial court’s order granting a new trial. The determinative question is whether or not the trial court abused its discretion in the granting of a new trial in the case. This question was answered in the case of Bateman v. Roller, 168 Kan. 111, 211 P. 2d 440, where it is stated: ‘“VÚien a trial court sets aside a verdict and grants a new trial generally without specifying any reasons therefor the supreme court has no means of passing upon the sufficiency of the grounds on which its decision is based and hence cannot hold that its action with respect thereto amounts to an abuse of judicial discretion or constitutes reversible error.”- (Syl. ¶2.) In the mentioned case this court reviewed and analyzed many of our cases and it is not necessary to repeat the citations here. No reasons were given by the trial court for sustaining the motion for a new trial, and we might add, if they were requested, the record does not show it. It will not do, as defendant suggests, to limit those reasons to grounds stated in the motion. The books are full of cases recognizing that trial courts have authority to grant new trials on their own motion. Hence, when a new trial is granted generally it cannot be assumed a court in granting the new trial restricted its consideration of the motion and its decision with respect thereto to grounds of the motion alone. The presumption is that in the instant case the trial court performed its duty, exercised its independent judgment and determined whether the verdict should be approved. Under all our decisions (Raines v. Bendure, 166 Kan. 41, 199 P. 2d 456; Myers v. Wright, 167 Kan. 728, 208 P. 2d 589), if dissatisfied with the verdict, the trial court not only had authority but it was its duty to set the verdict aside and grant a new trial. For all we know the verdict may have been set aside and the motion sustained for any of several reasons. In any event, we are in no position to decide what those reasons were, and the defendant has failed to clearly establish any error in the trial court’s ruling with respect thereto. In Nicholas v. Latham, 179 Kan. 348, 295 P. 2d 631, we stated: “When a verdict rendered by a jury does not meet the approval of the trial court, no duty is more imperative than to set the verdict aside and grant a new trial.” (Syl. f 2.) See, also, Bishop v. Huffman, 175 Kan. 270, 274, 275, 262 P. 2d 948; Crockett v. Missouri Pacific Rld. Co., 188 Kan. 518, 363 P. 2d 536. This court is committed to the general rule that an order of a trial court allowing a motion for a new trial will not he reversed unless this court is satisfied the trial court’s action was wholly unwarranted and clearly amounted to an abuse of discretion. Further, the granting of a motion for a new trial rests so much in the trial court’s sound discretion that its action will not be held to be reversible error on appeal unless it can be said that the party complaining has clearly established error with respect to some pure, simple and unmixed question of law. (Allen v. Urban Renewal Agency, 192 Kan. 682, 390 P. 2d 1020.) We are of the opinion the defendant has fallen far short of the requirement to show abuse of discretion on the part of the trial court in vacating the jury’s verdict and granting the plaintiff a new trial, and we are required to affirm that order.	[ -16, -22, -12, -97, 12, 96, 50, -104, 97, -91, 39, -13, -83, -45, -124, 63, -18, 61, 117, 107, 86, -77, 7, -64, -74, -105, 123, -41, -11, -53, 118, 95, 77, 48, -118, 117, 70, 75, -59, 30, -114, 12, -104, -28, 24, -30, 48, 120, 86, 95, 49, -34, -29, 42, 25, -57, 40, 44, 95, 109, 16, -15, -102, 15, 127, 0, 51, -92, -104, -57, 88, 60, 64, 57, 3, -24, 114, -78, -122, -42, 105, -103, 12, 34, 99, 33, 21, 111, -68, -72, 39, 30, 13, -90, 24, 8, 107, 45, -106, -67, 118, 22, 7, 126, -20, 21, 25, -20, 3, -113, -74, -78, -33, 108, 18, 3, -21, 1, -108, 96, -52, -24, 92, 5, 27, -109, -115, -99 ]
The opinion of the court was delivered by Marshall, J.: The plaintiff recovered judgment for damages sustained by her in a collision with an automobile driven by the defendant, who appeals. The action was tried without a jury. The facts shown by the evidence were that the plaintiff, in an automobile driven by her husband, was going west on the north side of a public road; that the defendant, in an automobile, was driving east about eight feet behind a Ford car on the south side of the road, and attempted to drive around that car; that immediately after getting from behind the Ford car he saw the car driven by the plaintiff’s husband coming from the east, and realized that unless he could get out of the way' a collision would take place; that he attempted to drive out of the road to the north; that the plaintiff’s husband saw the defendant drive out from behind the Ford car, realized that a collision was about to take place, and attempted to drive along the extreme north side of the road so as to give the defendant room to pass between the car driven by the plaintiff’s husband and the Ford car; and that a collision then occurred. There was conflicting testimony as to the speed of the two cars — each side testified that the other was driving rapidly — and there was conflicting testimony as to which car struck the other. The defendant contends that the plaintiff’s husband was guilty of contributory negligence as a matter of law. That cannot be true, because the evidence did not show conclusively that he was driving at an unreasonable rate of speed. There was evidence which tended to show that he was on the proper side of the road and was exercising what care he could to avoid a collision with the defendant’s car. The result of the trial depended entirely on the evidence. The questions for determination were for the trier of facts, and the conclusions reached on the evidence are final. The judgment is affirmed.	[ -16, 120, 80, -82, 26, 96, -94, 90, 100, -121, -12, -13, -81, -53, 20, 115, -2, -65, 80, 35, -43, -93, 23, -125, -14, -13, -77, -51, -105, -54, 127, 127, 76, 48, -118, -43, 102, 9, 69, 112, -114, -98, -88, 121, -103, -112, -80, 58, 68, 15, 49, -97, -61, 46, 24, -57, 104, 40, 75, -79, -48, -16, 12, -115, 79, 16, -77, 52, -98, 45, -40, 26, -104, -79, 0, -8, 114, -90, -110, -12, 105, -101, 8, -26, 103, 1, 21, 45, -4, -104, 38, 126, 15, -89, 30, 24, -119, 1, -73, -65, 123, 112, 14, 106, -40, 93, 93, 104, 3, -53, -108, -71, -49, 114, -98, 72, -21, -127, 50, 113, -51, -8, 93, 5, 90, -69, -33, -106 ]
The opinion of the court was delivered by Hopkins, J.: The action was one for an accounting and to compel the execution of a deed in accordance with the terms of a contract to convey real estate. The court ascertained the amount due on the contract and ordered execution of the deed on payment of the amount. The plaintiff appeals. The contract provided for the conveyance of certain lots in Arkansas City for a consideration of $1,775; $600 was paid in cash; the balance was to be paid in installments of $25 per month, together with interest on the deferred payments, at the rate of 8 per cent per annum. The purchaser agreed to pay the taxes and to maintain insurance in the amount of $1,000. The contract provided that, upon the failure of the purchaser to make payments or perform the covenants specified, the contract should be forfeited and the seller should retain the payments made in liquidation of his damages. The contract, terms and times of payment were admitted by the parties, as was the amount paid on the contract. The court found that the plaintiff and her predecessors in interest had been in default since the 15th of September, 1921, and that the defendants were entitled to a judgment- foreclosing the contract and forfeiting all of the plaintiff’s interest in and to the property; that there was due on the 14th of February, 1924 (the date of the trial) the sum of $899.80; that the last installments under the terms of the contract was due February 15, 1924. The court gave the plaintiff an extension of sixty days, or until April 15, 1924, in which to make payment of the amount due. “The court further finds that in the event the plaintiff makes said payments as herein provided on or before the 15th day of April, 1924, that the defendants shall make, or cause to be made, to the plaintiff a good and sufficient warranty deed, conveying said property to the plaintiff, and shall at the same time furnish her an abstract showing a good and merchantable title to said premises except as to liens or encumbrances created by the plaintiff, and excepting taxes due and unpaid since the 15th day of March, 1920.” The plaintiff contends that the court erred in refusing to give the plaintiff eighteen months in which to redeem or pay the balance due for the property.- The contention is not sound. The contract was the ordinary real-estate contract providing for monthly payments. Time was made of the essence of the contract. The purchaser had already been three years in default. In her petition she alleged that she “is now ready and willing to bring the amount due the said defendant . . . into this court and deposit the same after the court has ascertained the amount due. . . . Wherefore, this plaintiff demands judgment that the court make an accounting between the plaintiff and defendant; that the court determine the amount due, and direct the defendant to make a warranty deed to this plaintiff for said premises, this plaintiff being able and willing to pay said amount at any time after the court determines the amount,” etc. It may be noted that the court did not declaré a forfeiture, but gave the plaintiff an extension of time in which to pay the back installments, all of which were past due except one. It would not have been equitable to the defendant to permit the purchaser to occupy the property another eighteen months without payments— one who had already been in default for small monthly payments upwards of three years. The property was purchased on March 15, 1920; $1,025 had been paid on the contract. The court gave the plaintiff until April 15, 1924, in which to pay the balance. Under all the circumstances the plaintiff had no cause to complain. (See Immell v. Seaverns, 117 Kan. 12, 230 Pac. 69.) Other complaints that the court should have considered an alleged settlement between the parties, that the plaintiff should have been-given credit for costs in a former action, and that the court erred in its computation of the amount due, are without merit. The judgment is affirmed.	[ -46, 122, -48, 111, -118, 64, 104, -120, 88, -87, 38, 91, -25, 66, 20, 109, -76, 57, 101, 106, 69, -77, 7, 96, -42, -77, 81, -43, -67, 77, -12, -41, 76, 33, -62, -107, -26, -61, -63, 24, 78, -125, -119, 108, -35, 96, 48, 59, 80, 4, 49, -113, -29, 45, 29, 74, 109, 40, 107, 49, -40, -72, -117, -123, 127, 3, -111, 37, -100, 67, -56, -116, -112, 53, 0, -56, 115, -74, -122, 84, 77, 27, 40, 98, 102, 2, 69, -21, -40, -104, 46, -2, -115, -90, 82, 120, -117, 108, -66, -100, 108, 0, 4, -10, -26, -107, -39, 108, 7, -117, -44, -15, 15, 126, -110, 11, -9, 3, -79, 117, -49, -22, 92, 71, 91, -109, -113, -39 ]
The opinion of the court was delivered by Burch, J.: The action was one to recover on an insurance policy. A verdict was returned in favor of plaintiff, on which judgment was entered. In due time a motion for new trial was filed, which the court sustained. Plaintiff appeals. The defense was that the semiannual premium due March 26, 1921, was not paid, and that on April 27, 1921, the statutory notice of cancellation of the policy, unless premium were paid, was given. The jury returned the following findings of fact: “No. 1. Did Edgar B. Sanders, or any one for him, pay the premium on the policy in question due on the 26th day of March, 1921? Answer: Yes. “No. 2. Did the defendant cause to be mailed to Edgar B* Sanders a notice on the 27th day of April, 1921, stating the amount of premium due and unpaid and of its intention to forfeit or cancel the policy in question, and inclose such notice in an envelope addressed to Edgar B. Sanders, Pratt, Kansas, postage prepaid? Answer: No.” Keeping track of payment and nonpayment of premium, and taking steps to protect against liability on policies producing no premium, are vital matters to any insurance company. The method is usually according to some system which affords slight opportunity for error or mistake, and regular operation of the system is strong proof of correctness of result. In this instance the defendant’s secretary described an apparently efficient system of premium accounting employed by the company, and the various records required by the system, supplemented by the secretary’s testimony, disclosed that the insured defaulted in payment of the March, 1921, premium, and that the statutory notice of intention to cancel was duly given. There was no direct evidence, oral or documentary, of payment of the premium. The insured made some dying declarations that his insurance was all paid up, and there was conflicting testimony concerning conduct and statements of an agent of the company relating to status of the insurance. The evidence that notice of cancellation was not given consisted of testimony that, after death of the insured, a person who examined his papers found no such notice among them. One of the grounds for the motion for new trial was that the verdict was contrary to the evidence. The special findings of the jury necessarily inhered in the general verdict. The order granting a new trial stated that the evidence was insufficient to sustain the findings that premium was paid and notice was not. given. Since the court was not satisfied with the manner in which the jury had dealt with the evidence, it was the court’s duty to grant a new trial. Granting the new trial operated to vacate the findings, the verdict and the judgment. The insured held two policies of $5,000 each, issued by the company. One was in good standing at the time of the insured’s-death, and the company paid it. Fairly considered, the evidence showed quite conclusively that the March, 1921, premium on the other policy was not received by the company, and there was no satisfactory evidence that any arrangement was made for its payment. Therefore, the subject of notice of cancellation became important. The statute reads as follows:. “Before any such cancellation or forfeiture can be made for the nonpayment of any such premium the insurance company shall notify the holder of any such policy that the premium thereon, stating the amount thereof, is due and unpaid, and of its intention to forfeit or cancel the same, and such policyholder shall have the right, at any time within thirty days after such notice has been duly deposited in -the post office, postage prepaid, and addressed to such policyholder to the address last known by such company, in which to pay such premium; and any attempt on the part of such insurance company to cancel or forfeit any such policy without the notice herein provided for shall be null and void. The affidavit of any responsible officer, clerk or agent of the corporation, authorized to mail such notice, that the notice required by this section has been duly addressed and mailed by the corporation issuing such policy shall be prima jade evidence that such notice has been duly given.” (R. S. 40-333.) Each policy issued by the company has an application pocket number, and the original application, correspondence and other papers referring to that policy are kept in the numbered pocket in the company’s vault. A carbon copy of the cancellation notice, which the company claims it gave the insured, was retained, and was filed in the proper pocket. The copy was introduced in evidence, and the notice complied with the statute. The copy of notice was attached to an affidavit of mailing, which reads as follows: “Affidavit. “State of Kansas, Shawnee County, ss. “R. C. Burge, being first duly sworn, on her oath deposes and says that she is assistant secretary of the Bank Savings Life Insurance Company, and as such assistant secretary she is authorized to mail notices to policyholders provided for by the laws of the state of Kansas. Affiant further states that on the 27th day of April, 1921, she caused to be mailed to Edgar B. Sanders a notice, a true copy of which is hereto attached, marked ‘Exhibit A’ and made a part hereof. Affiant further states that said notice was inclosed in an envelope addressed to Edgar B. Sanders, Pratt,,Kansas, the same being the last known address of the said Edgar B. Sanders, and that said notice, inclosed in an envelope as aforesaid, with postage prepaid, was deposited in the post office of the city of Topeka, Kansas, on the 28th day of April, 1921. “(Signed) R. C. Bukqe.” “Subscribed and sworn to before me at Topeka, Kansas, this 12th day of May, 1922. (Signed) Agnes G. Kelley, Notary Public. “My term expires March 15, 1925.” Plaintiff says there was no proof outside the affidavit that R. C. Burge was a person authorized to make it. The secretary of the company testified that his company has a mailing clerk, Miss George, who mails out cancellation notices; that R. C. Burge is assistant secretary of the company, and that she makes out the cancellation notices which Miss George mails. The secretary testified further, however, that Miss Burge’s duties as assistant secretary are varied, among them being general charge of the collection of premiums, and that she mails out statutory notices. Therefore, authority of Miss Burge to make the affidavit was sufficiently established. Plaintiff says the affidavit was defective in that it did not state who mailed the notice. The statute makes no such requirement, and the statement that the affiant caused the notice to be mailed was sufficient. Plaintiff says the affidavit does not show the notice was addressed and mailed by “the corporation issuing the policy.” The copy of notice marked “Exhibit A” attached to the affidavit identified the policy, and while the affidavit did not state specifically that Miss Burge acted “for and on behalf of the company,” the affidavit disclosed with sufficient certainty that she was acting in her official capacity. Other criticisms of the affidavit are without merit, and the affidavit proved prima jade that the cancellation notice was given. The statute does not require that the notice shall be received by the policyholder, and if notice be given, the policy may be canceled unless premium be paid. The testimony that the notice was not found among the papers of the insured after his death was not introduced to show he did not receive it. The testimony was introduced to show that no notice was given. Was the testimony sufficient to overcome the statutory evidence? In the case of Hastings v. B. L. Ins. Co., 138 N. Y. 473, the court held that where failure to find a cancellation letter among papers of a decedent is coupled with the fact that evidence of mailing is not clear and positive, the question whether the letter was mailed is one for the jury. In that case, however, it was necessary that the letter should be received in order to terminate a course of dealing and render the policy void. In this case actual receipt of cancellation notice is not essential to forfeiture, and the statutory proof that notice was given is clear and positive proof. In the case of Click v. Sample, 73 Ark. 194, a school director took and subscribed the oath of office and mailed it to the county clerk. The county clerk testified the oath was not in his files, and no record of it could be found in his office. The court held the common-law presumption that the letter was received was not overcome. In the case of Garr, Scott & Co. v. Stark, 36 S. W. 149, the- court of chancery appeals of Tennessee held that proof that a letter was not on file was not proof it was not received, and was not sufficient to overcome the presumption it was received. The decision was affirmed orally by the supreme court. The Arkansas and Tennessee decisions are in accord with standards of probative value recognized in'the business world. In Dean Wigmore’s opinion, failure of courts to recognize such standards causes the law to be distrusted. (1 Wig-more on Evidence, 2d ed., § 95, note, p. 331.) However this may be, the court holds in the present case that oral testimony that no cancellation notice was found among the policyholder’s papers after his death was insufficient to overcome the statutory evidence that notice was duly given. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Dawson, J.: This was an action by a father for the death of his sixteen-year-old son, who was drowned at the entrance of an artificial tunnel which the city of Rosedale had bored through a hill for an outlet to the Kansas river to divert the water of a creek which theretofore had meandered back and forth through parts of Rosedale, Kan., and Kansas City, Mo., and which in wet weather was wont to subject parts of those cities to inundation and damage to life and property. In dry weather the creek was sluggish, serving as an open sewer for the two cities, and containing foul and stagnant pools which were inimical to public health. The project of correcting the mischievous tendencies of the stream, known as Turkey creek, had been the subject of various ordinances and official negotiations between Rosedale and Kansas City, Mo., and eventually resulted in straightening and widening the channel in Rosedale, and in making a tunnel through “Greystone Heights” and damming the old channel leading into Missouri, thus directing the creek by a short cut into the Kansas river. A complementary part of this project was the construction of a sewer which drained the stagnant pools which had formerly existed in the old channel during seasons of little rainfall. The entrance to the tunnel is approached by an artificial channel with high banks from the point, where the stream was dammed and diverted from flowing into Missouri. The artificial channel has a bed 30 feet wide, paved with concrete, and the banks are similarly faced with concrete for some 300 feet from the tunnel entrance. A witness for plaintiff who viewed the situation the day of the accident testified: “There was a concrete facing on either side of the creek. I was over there the same day and went into the water. I entered the water about 400 feet from the tunnel entrance; ... I walked ... to the tunnel; . . . For the first 300 feet the water ran in the path of the creek from about 4 inches up to 2 feet; it was flowing very fast right at the mouth of the tunnel. Where I first entered the water it was nearly dry and for the first 100 feet was only about 6 inches deep and was' not very swift; the second 100 feet was probably a foot deep, and as we neared the tunnel it had a riffle or current. I walked' in the water until within about 50 feet of the tunnel. At that time it was about IY2 feet deep. At the 50 feet immediately before my entering the tunnel the water was swift and looked to be about 2 feet deep; right up to the mouth of the tunnel it was 15 feet or probably more deeper. ... As I got into the tunnel proper it dropped about 15 feet; going back 15 or 20 feet from the mouth of the tunnel there was a swift current. The bed of the artificial creek had a slope and had been built in that shape and it was slippery; until you got within about 50 feet of the tunnel the bed of the creek was flat, but there was a down grade toward the tunnel, sloping gradually downward until right at the tunnel.” A civil engineer testified that the abrupt pitch into the tunnel entrance was to give the waters of the creek such velocity that debris would not accumulate and choke the tunnel, but insure its being carried through into the river. On June 10, 1921, five or six boys went to Turkey creek, entering the stream bed near where the natural channel runs into the artificial channel some three or four hundred feet from the tunnel entrance. They waded towards the tunnel. Three of the lads slipped into the deep water and managed to climb out again, but two were drowned. One boy of eleven years testified: “It was afternoon when we started over there. Paul Wise, my brother Franklin Cooper, William Gorman and myself and two more boys were together. ... I had never been over to this creek before, but I think the other boys had been over there. We . . . went over the hill and down a path. We went down into the creek from the west side about 300 feet back from the mouth of the tunnel and fished for crawdads. We could see into the tunnel quite a ways, but not clear through, because it was dark in there. We were all barefooted; nobody went in swimming; we did not go inside the tunnel. My brother was going west and had hold of my hand; we slipped and fell into the water, but I grabbed hold of something on the bank; my brother didn’t get hold of that and the Gorman boy reached, in and tried to get him and he slipped and went in too.” The father of the Gorman lad brought this action against the city of Rosedale, and its successor, Kansas City, Kan., charging negligence in the construction and maintenance of the artificial channel and tunnel, and alleging that it was an attractive nuisance to children. Plaintiff’s petition alleged: “The defendant was negligent in the matters herein set out, in altering said watercourse; in constructing said artificial channel; in constructing said tunnel through said bluffs; in diverting the water from said natural watercourse through said channel and tunnel; in constructing said tunnel in such a way as to cause the water in said stream to flow into said tunnel with a swift current; in constructing said tunnel narrow, so as to increase the rate of flow of said stream as it enters the tunnel; in failing to provide any barriers around said artificial channel; in failing to provide any barrier across the mouth of said tunnel; in failing to post any notices or warning of the dangers lurking in the water of said creek at said place; in failing to guard said dangerous channel and watercourse; in permitting said channel, watercourse and tunnel to exist in an unguarded and dangerous condition attractive to children within the limits of said city; in failing to use reasonable care to keep the plaintiff’s child and his playmates away from said watercourse, channel and tunnel; in 'maintaining in said city said dangerous and attractive nuisance. . . . In so constructing the tunnel and its approaches so there would be a dangerous but unseen stepoff in the hole in the bed of said channel and tunnel — an eddy, whirlpool and undertow in the water flow into said tunnel, and a deep and dangerous hole therein.” The evidence for plaintiff tended to show the historical facts pertaining to the construction of the tunnel and the death of plaintiff’s son as alleged. The evidence did not show that it would have been practicable to have inclosed the artificial channel and tunnel so that boys might be kept out. A civil engineer called as a witness for plaintiff testified on cross-examination: “The city would have to put a wall around the bed of Turkey creek to keep the boys away the full length of the creek. And even if they did that, there was nothing to prevent their coming off the public highway into the creek. It would not be practical to put anything across the mouth of the tunnel to keep the boys or other trespassers from getting in there. It would be likely to choke up the flow of the water.” Nor was there any evidence to show that there were any faults in the engineering- or construction of the tunnel. As a part of the history of the tunnel and the objects sought to be accomplished certain ordinances and contracts between Rosedale and Kansas City were brought into the record. One of these took note of the public character of the improvements and the necessity therefor, thus: “Whereas, Turkey creek, a natural watercourse, runs through the City of Rosedale and into and through west bottoms in Kansas City, Mo., finally emptying into the Kaw river in Kansas City, Kan.; that said creek is now used as an open storm and sanitary sewer by all three cities at the points therein through which it runs; that said creek as now so used is unsanitary and offensive to the inhabitants of such cities; that the watersheds of said creek are partly in Missouri and partly in Kansas, and within said cities, and the health, safety and comfort of the inhabitants thereof requires the construction of certain inclosed storm and sanitary sewers to take care of the water and sewage of Turkey creek from Rosedale, Kan., to its mouth where it empties into the Kaw river; that in order to successfully accomplish this undertaking, and to take care of the flood water in Turkey creek above Valley street in Rosedale, and to prevent such water and the sewage below Valley street from flowing down said creek and through that portion of Rosedale below Valley street, and thus protect the property and health and secure the safety and comfort of the inhabitants of Rosedale and Kansas City, Mo., it is necessary to alter and change the channel and divert the course of Turkey creek in Rosedale to a point west of Valley street to the northward, through a ditch, drain or tunnel into the Kaw river; and that the changing and diverting of Turkey creek as aforesaid will be for the mutual benefit of both Rose-dale and its inhabitants and Kansas City, Mo., and its inhabitants; that in order to change and divert the course of Turkey creek as aforesaid it will be necessary to build, construct and maintain a dam across the same at a point above mentioned, and to raise the grade of Valley street from the bluff on the north to a point about 200 feet south of Turkey creek.” Defendant’s demurrer to plaintiff’s evidence was sustained, and he appeals. It seems rather obvious that the trial court’s ruling was based on the theory that the artificial channel and tunnel were not an attractive nuisance, and also, perhaps, on the theory that they constituted an improvement made by the city in its governmental capacity, as to which, even if negligently constructed or maintained, no liability would attach because there is no statute imposing such liability. It is not contended that the city lacked authority to build the tunnel. It was apparently constructed under section 1735 of the General Statutes of 1915, which in part reads: “The council [of a city of the second class like Rosedale] may . . . establish, alter, change, straighten, divert and otherwise improve the channels of watercourses, wall them and cover them over, and in connection therewith construct and maintain within or outside of the city limits such channels, tunnels and ditches as may be required and necessary to form an outlet and drain for the water carried by such watercourses into a creek, ravine or river, and build and erect all walls, embankments, levees and rip-raps to protect the banks thereof; . . . And provided further, That in the construction and maintenance of such work and improvement such city may receive aid and contributions towards the payment of the cost thereof from, and may contract and cooperate with municipal and other corporations and individuals of this or any other state. . . . The mayor and council shall be the sale judges of the necessity for and the expediency of the making of the improvements herein provided for and the manner of the payment of the cost thereof; and this act shall be liberally construed to encourage the improvement of natural watercourses, to protect lands from damage and from injury by overflow, and to promote the public health, convenience and welfare.” The determination of the city government that the construction of the diversion channel and tunnel was for the public welfare, being within the scope of its official powers, was conclusive. In The State, ex rel., v. Dowling et al., 117 Kan. 493, 496, 232 Pac. 615, it was said: “This court has repeatedly held that where the determination of the existence of prerequisite facts to authorize official action is vested in a local tribunal, such as a county board or a mayor and city council, its determination is conclusive and is not subject to review except in cases of fraud or similar misconduct of sufficient gravity to vitiate it.” (Citing authorities.) It seems perfectly clear, too, from a judicial standpoint, that straightening the meandering course of a creek flowing through a city and making an artificial channel and tunnel to lead it by a short route to the river would have the tendency to minimize the evil effect of floods on life and property in its vicinity. And the elimination of foul and stagnant pools in the creek bed in times of drought was also an important desideratum from the standpoint of public health. We think that this undertaking was governmental in character, and therefore the city was not liable for negligence in the construction or maintenance of the improvement even if negligence had been established.. This nonliability of cities for the manner in which their governmental powers are exercised and governmental duties discharged, where no statute imposes a liability, has been so frequently and fully discussed elsewhere that it needs no amplification here. In Rose v. City of Gypsum, 104 Kan. 412, 179 Pac. 348, it was said: “Thus it has been held that a city is not liable for damages caused by an explosion of dynamite caps which the city’s employees, had carelessly left on the premises of its detention hospital (Frost v. City of Topeka, 103 Kan. 197, 173 Pac. 293); nor where a child had been bitten by a wolf in an unguarded cage of a city zoological garden (Hibbard v. City of Wichita, 98 Kan. 498, 159 Pac. 399); nor where a boy was drowned in an unguarded city park (Harper v. City of Topeka, 92 Kan. 11, 139 Pac. 1018); nor because of injuries sustained through defective conditions and negligence in the maintenance of city jails and pest houses (LaClef v. City of Concordia, 41 Kan. 323, 21 Pac. 272; Butler v. Kansas City, 97 Kan. 239, 155 Pac. 12). Illustrations of this sort could be multiplied from references to our own reports without the need of borrowing citations from other jurisdictions.” (p. 419. See, also, Todd v. Drainage District, 109 Kan. 754, 201 Pac. 1096.) In view of these controlling precedents and the reasons on which they are founded, it might seem unnecessary to consider whether the artificial channel and tunnel could be denounced as an attractive nuisance. But as appellant asserts that the decision was based on the trial court’s theory that no attractive nuisance was shown, the point may be examined. First, however, it should be noted that a judgment correct in itself cannot be disturbed merely because the reasons given therefor or which led to such judicial determination are fallacious or illogical. (Fitzgerald v. Realty Co., 106 Kan. 54, 56, 186 Pac. 739; Harmon v. Harmon, 111 Kan. 786, 793, 208 Pac. 647; The State v. Frey, 111 Kail. 798, 802, 208 Pac. 574.) And even in our own premier “attractive nuisance” cases, a prerequisite to a recovery for damages was at least some evidential showing that it was practicable to keep children away from such dangerous allurements, or to lock, inclose, or otherwise secure them so that they would not work mischief to children. (K. C. Rly. Co. v. Fitzsimmons, 22 Kan. 686; Price v. Water Co., 58 Kan. 551, 50 Pac. 450; Biggs v. Wire Co., 60 Kan. 217, 56 Pac. 4; Electric Light Co. v. Healy, 65 Kan. 798, 70 Pac. 884; Osborne v. Railway Co., 86 Kan. 440, 121 Pac. 364. See, also, excerpt from Peters v. Bowman, quoted in Zagar v. Railroad Co., 113 Kan. 240, 243, 214 Pac. 107.) The evidence in this case was that it was altogether impracticable to keep children out of the artificial channel and tunnel of Turkey-creek; and, for that matter, there was no evidence which would justify a conclusion that there were any hazards to boys wading in the artificial channel and tunnel different or greater than those which exist in natural streams or in this stream prior to the diversion and improvement of its watercourse. In Somerfield v. Power Co., 93 Kan. 762, 145 Pac. 893, the action was for damages for the death of a child who had fallen into an artificial canal which had been constructed by a power company through a city for commercial purposes. The liability of the power company turned on the question whether the open, unfenced and unguarded canal, fifty feet wide, with perpendicular banks thirteen feet high, carrying a stream of water seven feet deep through a populous city, and along the banks of which children were wont to gather to play and fish and swim, was an attractive nuisance. The trial court so held. In reversing that judgment this court said: “The canal, as will be observed, has the characteristics of a natural stream and can no more be regarded as an attractive nuisance than would a river flowing through the city or a pond or lake therein. It has been held that an unprotected pool in a natural watercourse to which boys resorted to wade and swim could not be regarded as an attractive nuisance within the meaning of the ‘turntable’ cases. (Tavis v. Kansas City, 89 Kan. 547, 132 Pac. 185.) In Harper v. City of Topeka, 92 Kan. 11, 139 Pac. 1018, it was ruled that a pond in a city park which was substantially a reproduction of a natural pond, although attractive to children, did not come within the rule of attractive nuisances. There is no greater necessity to build a fence or put a cover over the canal than there would be to fence or cover a natural stream, and there can be little distinction made between them so far as the ‘turntable’ doctrine is concerned. . . . The court does not feel warranted in extending the doctrine so as to make appellant liable for failing to fence or guard a watercourse like the one in question, and which, so far as the ‘turntable’ rule is concerned, corresponds with a natural stréam.” (p. 764. See, also, Zagar v. Railroad Co., 113 Kan. 240, 214 Pac. 107.) The case of Roman v. City of Leavenworth, 90 Kan. 379, 133 Pac. 551; id. 95 Kan. 513, 148 Pac. 746, is urged on our attention as supporting the contention of plaintiff. Measurably so it does. At the first presentation of that case in this court the law of the case, rightly or wrongly, was settled (Gratney v. Wyandotte County, post, p. 101), and an affirmance of the judgment at the second hearing, after a jury had settled the facts, followed as a matter of course. In that case a boy was burned by going into a smoldering city dump and the city was held liable; but the question whether the dump was maintained by the municipality in its governmental capacity or in its quasi-private proprietary capacity was not raised and was not decided. The judgment of the trial court was correct, and it is affirmed.	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The opinion of the court was delivered by Johnston, C. J.: L. C. Rose was convicted of robbery in the third degree and appeals. In substance the charge in the information was that Rose did rob and take from the person- of C. A. Auger $500 by verbally accusing Auger of violations of the prohibitory liquor law and the pretense that one Clem Giles, his associate in crime, was a federal officer, and through threats of arrest and the taking of Auger into custody and by accusations, threats and intimidations in connection with Giles, extorted $500 from him. The statute under which the defendant was convicted is: “If any person shall, either verbally or by a written or printed communication, accuse or threaten to accuse another of any felony or other crime, or threaten to do any injury to the person or property of anyone, with a view or intent to extort or gain any money or property of any description, belonging to another, and shall, by intimidating him with said accusation or threat, extort or gain from him any money or property, every such offender shall be deemed guilty of robbery in the third degree.” (R. S. 21-529.) The principal error assigned by defendant is that the evidence does not warrant the conviction. Among other things, there was testimony to the effect that on the evening of the holdup Auger visited Rose at the home of his father, and that Rose brought out a jar of whisky to the car out of which both of them drank. It was then proposed that they should drive to the town of Beagle, and as they were traveling along the road in Auger’s car they were stopped by Giles, who drew a gun upon them, ordered them out of the car, found the intoxicating liquor in the car and remarked that he was an officer sent from Topeka to get them. Giles transferred the whisky from the Auger car to that of his own, made Auger get into the Giles car and sit in the front seat with him while Rose sat alone in the back seat. Giles told them that he was going to take them to Paola and turn them over to the sheriff, but before they reached Paola a suggestion was made that the trouble ought to be fixed up in some way. There is a dispute as to whether the suggestion was first made by Rose. Giles then said to them, in substance, “You are worth a lot of money, and if each of you will give me $500 I will turn you loose and drive you back to your car.” Rose said he had no money, but would turn over certain mules which he had. Giles then prepared statements for Rose and Auger to sign, in which they acknowledged that liquor had been found in their possession, and to which they attached their names. Auger offered a check for his part of the levy, but Giles refused to take a check and it was arranged that Auger should obtain the money and deliver it to Giles at the Rose home the following morning, at which time Rose should turn over the mules for his part. On the next morning Auger procured the money and took it to the place of payment. Rose was there and informed Auger that Giles had been there but had gone, but that they would go down the road and find him. Rose said that Giles was mad; that he was dangerous, and advised Auger to pay the money to Giles without saying anything to him. They found Giles, to whom Auger gave $500 in currency, whereupon Giles handed Auger the written statement which he -had signed and told him to destroy it. Then he handed the jar of liquor out to Auger, which he passed to Rose, who threw it on the ground and broke it. Giles then told Rose to get into the car with him and they drove away together. Nothing was said about Rose turning over mules to Giles. There is conflict as to some of the circumstances stated and of other testimony, but that given in behalf of the-state was accepted by the jury. It is contended that there is a lack of proof that Rose cooperated with Giles in the extortion and robbery or that he lured Auger into the trap set for the. robbery. There is little direct proof that Rose conspired with Giles to perpetrate the offense, but it is not necessary that concert of action be established by direct evidence. Circumstantial evidence alone which naturally leads to a belief of guilt beyond a reasonable doubt is sufficient to support a conviction. While there is little direct evidence that Rose and Giles were cooperating in the plan of robbing Auger, there are some significant circumstances which tend to show concert of action, and that Rose participated in the crime. Rose invited Auger to visit him the evening before the robbery and while Auger could not make the visit on that evening, he did phone Ro’se that he would come the following evening. When Auger made the call upon Rose the latter brought out a jar of whisky which he left in the car when the drive was made towards Beagle, and to the place where Giles intercepted them and found the jar of whisky which Rose had brought into the car and also a bottle of wine belonging to Auger. When Giles took both of them into custody he kept Auger, who was spoken of as a crippled old man, under his eye and at his side, but allowed the young man Rose to occupy the back seat without special surveillance. While Rose said he did not know the holdup bandit, who was satisfactorily shown to be Giles, it appears that Rose had known him since he was a small boy. Auger had not been acquainted with Giles before the robbery, but subsequently identified him as the bandit. It appears that Giles was not masked that night and although Rose knew him well, he professed not to recognize him. It was arranged, as we have seen, that the money was to be paid at the Rose home and when Auger reached there with the money .the following morning Rose admonished him to pay over the money without saying anything to Giles, that he was mad and dangerous. When Auger made his payment there was no turning over of mules by Rose. After the Auger payment it appears that Rose entered the Giles car and they drove away together. A few days later when Auger suggested to Rose that an effort be made to find the bandit, Rose told him that he didn’t know the man and could not do anything. On the day following .the holdup it appears that Rose accompanied Giles on a trip to La Cygne and from there to Amsterdam, and on this trip he said he told Giles that “A guy tried to fleece me out of some money,” but he did not tell Giles any of the details. Auger testified that while Rose claimed to have no money at the time, he met him about a week after the crime and found Rose dressed in a brand-new suit of clothes, hat and everything from top to bottom, which he said he had purchased at Kansas City the previous Saturday. In view of the circumstances related and other testimony in the case, we cannot say that the jury was not warranted in finding Rose guilty of the charge upon which he was convicted. We find nothing substantial in the complaint that the court unduly limited the cross-examination of the witness Auger. The judgment is affirmed. Harvey, J., not sitting.	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The opinion of the court was delivered by Burch, J.: The action was one for partition of real estate. Plaintiff claimed under the statute of descents and distributions, as widow of the deceased owner, David T. Getter, who left a will to which she had not consented. The defense was that she had executed an antenuptial contract which barred her claim. A demurrer to the answer was sustained and the executor and devisee appeal. The antenuptial contract reads as follows: “This Contract, Made and entered into between David T. Getter, of the first part, and Lonie Catrow, of the second part, this 30th day of June, 1920, witnesseth: That whereas, said parties to this contract are single and contemplate being married to each other, and in contemplation of such marriage it is the desire of both of the said parties to this contract to have all property rights settled and adjusted, including present, future and contingent interests of each; it is therefore mutually agreed between the parties to this contract that all property owned by each of said parties, including real and personal property of every nature and kind, before and at the date of their marriage, shall be and remain the individual and separate property of each of the said parties, and for the purpose of settling all future support of every nature and kind whatsoever, it is agreed on the part of the said David T. Getter that he will pay to the said Lonie L. Catrow the sum of three thousand dollars; five hundred dollars cash in hand paid, the receipt of which is hereby acknowledged by the said Lonie L. Catrow, and the balance of said sum of three thousand dollars within three years from the dating and signing of this contract.” On June 11, 1921, Getter made his will, which contained the following provision: “Fifth. It is my will, in contemplation of a certain antenuptial contract entered into between myself and my present wife, Lonie L. Getter, the consideration of which was to be received by her in lieu of her dower or any other interest or claim in or to my estate or any portion thereof, that should she be living at the time of my death she shall receive no portion of my estate. . . .” On October 14,1923, Getter died. In this state contracts freely and fairly made between persons contemplating marriage, settling property rights, are looked upon with favor, and are to be liberally interpreted with a view of carrying out the intention of the parties. Marriage is a good consideration for such a contract, and the subject of what interest the survivor shall take in the estate of the deceased spouse stands upon the same footing as any other subject of antenuptial contract. (Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537.) In the interpretation of such a contract, intention of the parties is sought, and, when found, intention governs. To bar inheritance, an intention to do so must be disclosed by the instrument. Such an intention may not be derived by mere implication from extensions of term meanings beyond just and fair import, or by strained construction; but an express provision covering the subject of succession is not necessary. (Rouse v. Rouse, 76 Kan. 311, 317, 318, 91 Pac. 45.) The parties to the contract under consideration stated their intention. They said the contract was designed to settle and adjust all property rights, including present, future and contingent interests of each. Then follow provisions for individual ownership of what each one had before and at date of marriage, and for future support of the woman. Applying the interpretative declarations, these provisions did not settle and adjust two subjects of contract only; they settled and adjusted all property rights of each one, including present, future and contingent interests. Right of succession was clearly embraced in the expression “future and contingent interests,” and neither one as survivor of the other could have or enjoy any interest in the property of the other by virtue of the marriage. This meaning is made manifest by inverting the terms of the contract: Whereas, the parties hereto contemplate marriage, therefore each one shall retain his individual property, and the woman shall receive three thousand dollars in money. This settles and adjusts all property rights of the parties, including present, future and contingent interests of each. The judgment of the district court is reversed, and the cause is remanded with direction to overrule the demurrer to the answer.	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The opinion of the court was delivered by Mason, J.: Margaret C. Kouns sued T. J. Myers, alleging that in July and August, 1919, she contracted with him as a broker to purchase for her for delivery at the seller’s option, during the following December, 10,000 bushels of corn, at prices ranging from $1.71% to $1.52 per bushel, giving him in part payment therefor $5,000, the balance of the price to be paid on delivery; that he had wrongfully failed to carry out the contract, on which account she asked the return of the money she had paid, less the sum of $2,524.78, which she had already received. She recovered judgment in accordance with her claim and the defendant appeals. The defendant’s version of the transaction is that he received from the plaintiff an order for the purchase of the corn as stated; that he bought the corn on the Chicago board of trade, but sold it at the market price (entailing a loss) on Saturday, November 29, 1919, because the plaintiff had no license from the United States food administration authorizing her to accept delivery of the corn, and the rules of the board included this: “On contracts for the current month no member shall have open and outstanding a contract for the purchase or sale for any person not duly licensed by the food adminstration.” The plaintiff pleaded that the defendant did not intend to purchase, and in fact did not purchase, any corn on her account. This issue, however, is disposed of by specific findings of the jury that an actual purchase was intended and made. But they also found that at the time of such purchase the defendant knew of the rule of the board of trade referred to and the plaintiff did not, and that the defendant knew that the plaintiff was ignorant of it and did not inform her of its existence until November 26, 1919. Under the instructions of the court, the general verdict implied also that the notice of the rule given by the defendant to the plaintiff was not timely. The defendant asserts that the evidence does not tend to establish any cause of action whatever against him, but even if so it could only be one for a breach of the contract, the measure of damages being the difference between what the plaintiff received from the proceeds of the sale of the corn and its market value, or what it would have cost -to replace it; in other words, that the recovery could not have been for more than a nominal amount, since the corn was sold at the market price. We think, however, the court was justified in submitting the case on the theory of rescission — in instructing the.jury that if they accepted the plaintiff’s version of the transaction she was entitled to the return of the money she had paid, because the defendant did not perform the contract, and gave as the sole reason therefor the existence of a condition known to him at its inception, which he had not communicated to her. Rescission is one of the remedies open to one who has paid money on the faith of a contract which the other party wrongfully fails to perform or the performance of which is impossible. (3 Willis-ton on Contracts, §§ 1455, 1457; 1 Black on Rescission and Cancellation, §§ 196, 208.) If, as the jury found, the defendant knew that on account of the board rule referred to he could not hold the corn for delivery to the plaintiff in the month specified in the contract unless she, before that, obtained a permit to receive it; and knowing that she was ignorant of the fact, failed to advise her of it until three days before he closed the deal, his position was at least as unfavorable as in an ordinary case of impossibility of performance. The circumstance that the plaintiff, being entitled to elect between rescinding and affirming the contract (2 Black on Rescission and Cancellation, §591), could recover nothing at all unless he chose the former course is no disparagement to his right. The choice between suing for rescission and asking damages will naturally be controlled by the interests of the plaintiff. “The former remedy doubtless would be adopted in cases where the contract, because of market or other conditions, was unfavorable to the aggrieved party, but favorable to the repudiator; the latter would more likely be adopted where the contrary is the case.” (10 Cornell Law Quarterly 147.) Complaint is made of the overruling of a motion to require an ‘election between two causes of action set out in the petition.- The second one was dismissed by the plaintiff on the completion of her evidence, and the presentation of the defendant’s case does not appear to have been hampered by the ruling. It was therefore nonprejudicial. The petition charged that the defendant did not intend to buy, and did not in fact buy, any corn on her account. At the conclusion of the plaintiff’s evidence she was permitted to amend by adding the allegation that if he had bought the corn he had later canceled the purchase. The allowance of this amendment is complained of. The matter was within the discretion of the court; the defendant was not denied full opportunity to meet the new matter, and no prejudice is shown to have resulted. The amendment did not change the cause of action; it merely made more definite the nature- of the charge. The original petition alleged as the basis of the action the defendant’s failure to carry out his contract. It alleged, as a matter of detail, that he had not intended to purchase the corn and had riot done so, but professed that after buying it he had closed out the trade by selling it. The amendment added that even if he had purchased it he had not delivered it to the plaintiff, but had sold it prior to the first of December. We regard this as a mere elaboration of the cause of action sued upon, not as the pleading of a new one. The plaintiff was allowed to introduce evidence that she had made a demand on the defendant for the names of the persons from whom he had bought the corn. A statute makes the refusal of such a demand in some circumstances primo facie evidence that the trans action to which it refers was illegitimate. (R. S. 50-126.) The defendant urges that the admission of the evidence was error because the section of the statute cited has to do only with the administration of the criminal law and has no application to civil litigation. Assuming that to be true, we think no prejudice could have resulted, because the jury found against the plaintiff upon the issue to which the matter was directed — whether the defendant had actually bought corn according to the plaintiff’s directions. The defendant suggests that in order to constitute a cause of action for rescission, the facts relied on must have existed at the time the contract was made. The recovery of the money he had paid is one of the remedies ordinarily open to a purchaser for the failure of the vendor to deliver chattels in accordance with his contract. (See texts already cited.) The judgment is affirmed. Burch, J., dissenting.	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The opinion of the court was delivered by Burch, J.: The action was one to recover on a policy of insurance containing a military-service provision, issued to one who became a soldier in the world war, did not pay the extra premium, was wounded, and died before he was discharged. Plaintiff recovered the full amount of the policy, and defendant appeals. The parties stipulated with reference to certain facts, some evidence was introduced at the trial, and the court returned the following findings of fact and conclusions of law: “Findings. “1. The action was begun. 22 December, 1920, to recover the face, $1,000, of defendant’s policy, number 7864, issued 28 June, 1916, on the life of Martin N. Lofstead, son of plaintiff. The premiums were regularly paid on said policy by the insured, to include that of 1919. “2. Upon trial plaintiff recovered judgment for $46.98, the cash surrender value of the policy. Plaintiff appealed, and the supreme court reversed the judgment of the district court, and directed the trial court to proceed further. CLofstead v. Insurance Co., 110 Kan. 455.) A new trial was had in March, 1924. These findings are made therein. “3. Martin N. Lofstead was inducted into the military service of the United States on 20 September, 1917, and was assigned to duty in France. On 29 September, 1918, fighting in the Argonne Forest, he was wounded, necessitating amputation of the left leg near the body. He was sent immediately to the hospital, removed early in 1919 to the United States, and admitted to Walter Reed General Hospital, Washington, D. C., 11th April, 1919, and remained there until his death on 1 July, 1919. “4. It is agreed by the parties- that the cause of his death was diphtheritic infection of the amputation stump, left hip; abscess post pleural right, and. bronchopneumonia, acute, right lung; and peritonitis acute and general. “5. No testimony, expert or other, has been offered to show causal relation, if any, between the three or four contributing causes named, or to show whether his death was induced primarily by diphtheritic infection, or by abscess (or pneumonia), or by peritonitis; nor whether probably no diphtheritic infection would have occurred had there been no amputation. “6. The policy issued by defendant contained a clause that, ‘If the insured at any time engaged in military or naval service in time of war (militia and national guard not in active service excepted), and .death shall occur during such engagement or as a result thereof, the liability hereunder shall be limited to the cash surrender value of this policy at the date of death, unless the insured shall have obtained the company’s consent and paid the extra premium therefor, at its established rate.’ “7. No consent was asked of the company by the insured, nor given by the company to the insured, to enter military service. No extra premium was paid or offered by the insured, nor was such demanded by the company, otherwise than by the bare letter of the contract in the policy. “8. The policy provided further that it ‘constitutes the entire contract between the parties hereto, and shall be incontestable after one year from date of issue, except for nonpayment of premiums and violations as to military and naval service.’ “9. The policy did not contain any statement of what the ‘extra premium’ amounted to, or would amount to, or how it should be definitely ascertained or computed, in the event of the insured’s entering military service; nor what was then its ‘established rate’ for such greater hazard. “10. The defendant at no time declared a forfeiture of the policy, nor attempted to do so. “11. The cash surrender value of the policy at the death of the insured was forty-three dollars ($43). “12. The insured ‘engaged in military service in time of war,’ September 20, 1917, and was not discharged therefrom to the date of his death. Practically, the war ceased with the armistice, 11 November, 1918, so far as the United States was concerned generally. “13. The wound which required amputation of the left leg was a direct result of the insured’s ‘engagement in the military service.’ The diphtheritic infection found lodgment in the stump and led to death. Without the war wound there would have been no such seat of infection. The abscess and pneumonia are consistent with long hospital conditions following the amputation, and the peritonitis consistent with an operation so near as the upper part of the left leg, or ‘hip,’ as the report of death shows. “Conclusions. “1. The policy was not forfeited, nor forfeitable, for engaging in the military service. (110 Kan. 455, syl., ¶[ 1.) “2. The entire clause providing extra premium to be paid in the event of insured’s engaging in military service was void for uncertainty as to premiums to be paid in addition to the ordinary premium, and the policy was valid to hold the defendant for the full face value. “3. The plaintiff should recover the full face value of $1,000, with six per cent per annum interest from 1 July, 1919.” This is a second appeal. At the first trial plaintiff was given judgment for the cash surrender value of the policy, $43, together with interest, making the total sum of $46.98. Plaintiff was not satisfied, and appealed. (Lofstead v. Insurance Co., 110 Kan. 455, 204 Pac. 530.) The plaintiff, not the defendant, contended that the policy was forfeited by the assured by engaging in military service. The plaintiff then contended the hypothetical forfeiture was waived by the company by acceptance of premiums at the regular rate, as pleaded in the reply. The court held the military service provision of the policy did not provide for forfeiture, but provided merely for liability limited to cash surrender value. The court did not stop, however, with this adjudication. It had before it a demurrer to a reply to an answer, and it proceeded to determine the legal sufficiency and effect of the answer and of the reply. The decision was that the answer, which pleaded specially the military-service provision of the policy, and alleged nonconsent of the company and failure to pay extra premium, stated a full defense to plaintiff’s cause of action, except the admitted cash surrender value of the policy. It was further decided that the facts pleaded in the reply as constituting waiver were not sufficient for the purpose. Because, however, the reply did not admit the truth of the facts stated in the answer, and was sufficient to put those facts in issue, it was held .the demurrer to the reply should be overruled. As a consequence of the interpretation placed upon the military-service provision of the policy, the court said: “The answer alleged facts which, if true, constituted a complete defense to all of the cause of action alleged in the petition, except $43 and the intérest thereon.” Elsewhere in the opinión the court said: “If, on the trial of this action it should develop that the allegations of the answer are true, the plaintiff cannot recover judgment for more than that for which judgment was rendered in this action.” (Lofstead v. Insurance Co., 110 Kan. 455, 457, 204 Pac. 530.) The result is, the cause was remanded to the district court to. determine the issue of fact raised by the general denial in the reply of the allegations of the answer, and to render judgment accord ingly. The district court has determined this issue of fact in favor of defendant, but has rendered judgment for plaintiff for the full amount of the policy, on the ground stated in the second conclusion of law. If plaintiff wanted a judgment on that ground it should have been presented in the first appeal. The court, however, will overlook for a moment the procedural bar to consideration of invalidity of the military-service provision of the policy, and will discuss the second conclusion of law. The second conclusion of law is erroneous. There is no uncertainty in the military-service provision which affects its validity. The policy was issued before the United States entered the world war. It insured the life of Martin N. Lofstead for $1,000 for a stated annual premium. Insurance companies cannot afford to insure war risks at peace-time rates. Such a practice would discriminate unjustly against policyholders not engaging in military service, would be indefensible as a business policy, and ought not to be permitted on grounds of public policy. Therefore the policy sued on provided that if death occurred while the insured occupied a military status, or as a result of having occupied such a status, the company should not be liable for the face of the policy, but should be liable for the cash surrender value only of the policy at date of death. This value was ascertainable from a table of cash surrender values, indorsed on and made a part of the policy. This rule of liability governed unless the insured negotiated with the company to keep the amount of his policy at $1,000. To keep the amount of the policy at $1,000 the insured was obliged to obtain the company’s written consent. The company was not obliged to consent, but if it did so the insured was required to pay an extra premium at the company’s established rate. There is no rule of law which required this condition to be more explicit in order to validate reduction of liability to cash surrender value. Plaintiff cites the case of Arendt v. North American Life Ins. Co., 107 Neb. 716, as sustaining the second conclusion of law. In that case the policy was incontestable except for military service in time of war. The amount of the policy was $2,500. The insured could keep it from being cut down on account of military service by obtaining consent of the company and by paying the extra premium, the amount of which was not specified, but which would not exceed three per cent of the face of the policy. If consent were not obtained the amount of the policy was reduced to such a sum as premiums actually paid would purchase on the basis of the increased premium. Problem: What was the amount contracted to be paid in the event of military service and nonconsent of the company? The contract furnished no solution, because a factor necessary in computing the amount — extra premium — was left indefinite. Because the face of the policy was not reducible by any definite method of computation to any definite sum, the court held it was not reduced at all. We have no such case here. In the policy sued on, the amount to be paid in case of engaging in military service is just as definitely and certainly fixed as the amount to be paid if the insured should not engage in military service— the cash surrender value of the policy, $43. Privilege to keep the policy at its face value notwithstanding engaging in military service was extended for the benefit of the insured. The company could attach what conditions it pleased in tendering the privilege. The conditions which were attached were accepted by the insured when he accepted the policy. He did not choose to exercise the privilege, and liability of the company was reduced to cash surrender value of the policy. Plaintiff moved to set aside the thirteenth finding of fact as not sustained by the evidence and the agreed facts, and the motion was denied. Plaintiff by an express statement in her brief forbears to assign denial of the motion as error; but plaintiff argues the findings of fact do not warrant the inference that death resulted from engaging in military service in time of war. In considering the question, the thirteenth finding' of fact may be ignored. It was stipulated that the wound which the insured received in battle necessitated immediate amputation of the left'leg near the body. While there was no medical evidence that the insured died as a result of his wound, it was stipulated that he died of infection of the amputation stump, and it is a matter of common knowledge that such an infection may cause death. Plaintiff argues, however, that the infection, and not the wound, was proximate cause of death, and cites Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338. In that case a high wind blew grain doors piled on a depot platform upon a railroad track. An engine was derailed and the engineer was killed. It was held the wind, and not the negligent piling of the grain doors on the platform, was proximate cause of the accident. The syllabus reads as follows: “In a case where two distinct, successive causes, wholly unrelated in opera tion, contribute toward the production of an accident resulting in injury and damage, one of such causes must be the proximate, and the other the remote, cause of the injury. “A prior and remote cause cannot be made the basis of an action for the recovery of damages if such remote cause did nothing more than furnish the condition, or give rise to the occasion, by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated and efficient cause of the injury.” (Syl. ¶¶ 1, 2.) While a wound furnishes a condition making infection possible, infection is not something intervening, dissociated from and wholly unrelated in operation to the seat of infection, as a sudden gale is distinct .from and unrelated to a pile of lumber. While infection is not so frequent since surgery became so nearly aseptic, morbific bacteria still lurk within and without the human body, find natural lodgment in wounds, and, if death result, the wound is the proximate and efficient cause. The agreement respecting facts recited that the insured died of diphtheritic infection of the amputation stump at the left hip. Then follows enumeration of abscess, pneumonia and peritonitis. Well-informed persons know that the abscess, pneumonia and peritonitis may very well have been consequences of the infection as primary cause. The information may be left at one side, because not communicated to the court by medical experts. But whatever concurring causes may have contributed to death, the insured died of infection of the amputation stump at the left hip. The chain of causation ending in death is complete: engaging in military service in time of war, a wound received in battle, amputation of the wounded member, and infection of the stump; and the doctrine of efficient proximate cause is fully satisfied. There is nothing else in the case of sufficient importance to require special mention. The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment in favor of plaintiff and against defendant for the cash surrender value of the policy at date of death of the insured, with interest.	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The opinion of the court was delivered by Hopkins, J.: The plaintiff sought to enjoin the defendant .drainage district from entering upon his land for the purpose of making or constructing ditches or drains. A hearing was had, at which the plaintiff admitted the legal incorporation of the district, but also attempted to set up the claim that the original incorporation of the district was void because founded upon an invalid notice. The court held that the plaintiff could not question the legality of the organization of the district. The plaintiff appeals. It appears from the record that the Rossville drainage district has had an existence and functioned as such since 1905. In the trial of the case this colloquy occurred; “Mr. Quinton (for defendant): Is there any question upon whether this board is a duly organized board? “Mr. Crane (for plaintiff): There isn’t any question but what this drainage district was incorporated. “The Court: Legally incorporated, you mean? “Mr. Crane: Yes. “The Court: Well, it is admitted — no denials that the defendants constitute a legally incorporated drainage board? “Mr. Crane: A drainage board under the drainage laws of 1905.” Notwithstanding the admission, the' plaintiff contends that the original notice, upon which the order incorporating the district was made, was void, and therefore that any and all actions and proceedings had by the defendant district are void and of no effect. He relies on the case of The State, ex rel., v. Drainage District; 116 Kan. 291, 226 Pac. 478, wherein it was held that the order of the board of county commissioners purporting to organize the district was void because based upon a void notice. That case is to be distinguished from the present one in that the proceedings were attacked in their inception and by the state. Here the district has had at least a de facto organization for a period of almost twenty years, and the legality of the organization is being questioned, not by the state, but by an individual. It has been so repóatedly held that private individuals may not maintain an action, the direct purpose of which is to question the validity of corporate or quasi-corporate organizations, that to discuss or enlarge upon the subject is useless. These are matters ordinarily within the province of the state acting through the attorney-general or the county attorney. (Bealmear v. Hildebrand, 107 Kan. 419, 191 Pac. 263; Schur v. School District, 112 Kan. 421, 210 Pac. 1105; Oil & Gas Co. v. Board of Education, 112 Kan. 737, 212 Pac. 900; Miller v. Barnard, 113 Kan. 631, 215 Pac. 1113; Pfeifer v. Klug, 114 Kan. 284, 219 Pac. 498; Elting v. Clouston, 114 Kan. 85, 217 Pac. 295; Railway Co. v. School District, 114 Kan. 67, 217 Pac. 296; School Dist. No. 38 v. Rural High School District, 116 Kan. 40, 43, 225 Pac. 732.) But, it is argued, a drainage district does not have the attributes of a quasi-public or municipal corporation, and in support of the argument the plaintiff cites numerous authorities, which are either not applicable or not controlling here. Among others, he cites Jefferson County v. Drainage District, 97 Kan. 302, 155 Pac. 54. This case does not support his contention. It was there decided that a drainage district organized under chapter 215 .of the Laws of 1905 is a public corporation created by the legislature to perform public functions. In the opinion it was remarked, “The drainage district, like the county, is a quasi-public corporation, an arm of the state, created by the legislature to perform a function of government. It derives its authority to exist from the same source as does the county.” (p. 303.) The defendant has filed a cross appeal, in which he complains of a part of the court’s judgment, which reads: “It is further ordered by the court that the defendants be and they are hereby enjoined from appropriating or taking any property of the plaintiff for use by the district in widening, deepening or otherwise improving said natural watercourse beyond the original or former boundaries thereof to prevent the overflow thereof, without first complying with the provisions of the statute with reference thereto.” It is contended that the court exceeded its power in entering the order. In its answer the defendant alleged that in the performance of its work it was impossible to state whether any of plaintiff’s real estate would necessarily be required or taken and appropriated by the widening of the watercourse, or how much, if any, damage might result to plaintiff’s growing crops. The court, no doubt, took the view that plaintiff should have the protection afforded by the provisions of the order objected to. Under the circumstances we are unable to say that the court was in error. It is also contended by the defendant that the court erred in taxing one-half the costs to the defendant. Under all the circumstances, this was not error. The judgment is affirmed. Harvey, J., not sitting.	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The opinion of the court was delivered by Hopkins, J.: The action was one to recover interest on a delayed payment for the construction of a sewer. A motion for judgment on the pleadings was sustained, and plaintiff appeals. The interest in question covers a period from January 23, 1922, the date the sewer was completed and accepted by the city, to October 4, 1922, the date when settlement was made of the principal amount ($116,232). The defendant city contends it was prevented from making settlement, during a part of the delinquent period, by a mandamus action filed against it in this court by the Brown-Crummer Investment Company. The contract between the plaintiff and defendant provided for payment upon completion of the sewer and acceptance by the city. In order to finance the construction of the sewer, the plaintiff arranged to procure the necessary funds from the Brown-Crummer Company. He executed to Brown-Crummer two forms of assignment, one assigning the money which would be due in payment for the work, the other, assigning the city’s bonds in the event the city should make payment in bonds. The assignments were presented to the defendant, accepted and approved. About the time for settlement, the city decided to pay in bonds, but almost immediately exercised its option to pay in money. The Brown-Crummer Company filed a mandamus action in this court, February 23, 1922, against the city to compel it to issue the bonds. The case was pending until September 6, 1922, when it was decided in favor of the defendant city. The defendant admits its liability for the interest accruing between the date when the sewer was completed and accepted, and the date when the Brown-Crummer Company instituted its action; also, from the date of the decision of this court until October 4, when settlement was actually made, and at the time of payment of the principal tendered to Brown-Crummer, interest for these periods amounting to $1,189.79. The tender was rejected, and the Brown-Crummer Company filed an action against the defendant for the full amount of interest due from the date of completion and acceptance of the contract until payment of the principal on October 4. It is admitted by the plaintiff that the assignments to the BrownCrummer Investment Company were absolute in form, but he contends that they were given as collateral security only for his notes to the Brown-Crummer Company. From this he argues that the pecuniary interest of the Brown-Crummer Company was limited to the amounts which it advanced to him. Plaintiff’s contention in this regard is contained in his reply to the defendant’s answer. It reads: “Further replying, this plaintiff says that while the assignment from this plaintiff to the Brown-Crummer Investment Company, as pleaded in- said answer, may have been in the form of absolute assignments, but that all of said assignments were understood and agreed by and between said BrownCrummer Investment Company and this plaintiff to be only as collateral security for such sum or sums as the said Brown-Crummer Investment Company might advance to this plaintiff for the completion of the improvement set forth and described in the petition and answer. Further replying this plaintiff particularly denies that the said Brown-Crummer Investment Com pany became, or was the holder of said estimates and entitled to the proceeds of said contract, but alleges the fact to be that they were only entitled to the proceeds thereof as collateral security for the sums they should advance, or had advanced to this plaintiff to carry on said improvements.” In support of his contention the plaintiff quotes from 5 C. J. 956, 957, 958, as follows: “An assignment that is made as collateral security for a debt gives the assignee only a qualified interest in the assigned chose; commensurate with the debt or liability secured, although the assignment is absolute on its face. . . . To the extent of his interest, the assignee is the owner of the collateral as against the assignor, and those claiming under him or against 'attaching, creditors of the assignor, and may sue thereon in his own name whenever he could do so under an absolute assignment. . . . Where the debt for which the collateral is given is paid, the right to hold the collateral ceases, and after that time, the assignee has no interest in the collateral that he can transfer to another. The assignee is liable to the assignor and to the creditors of the assignor for any balance realized from the collateral over and above the debt due.” The principle for which the plaintiff contends is correct. The difficulty lies in applying it to plaintiff’s situation. Plaintiff’s reply does not allege that his obligation to Brown-Crummer has been satisfied. The plaintiff executed to the Brown-Crummer Company his absolute assignment of the bonds or money, as the case might be, due him from the defendant. The defendant approved and accepted the assignment and thereby became liable to • the BrownCrummer Company for any amount due from it on account of the construction of the sewer. (See Fidelity & Guaranty Co. v. City of Pittsburg, 115 Kan. 740, 225 Pac. 83, and authorities cited.) It is apparent that the city had the money (the principal) and the use thereof from the time of the completion and acceptance of the sewer until October 4, when payment of the principal was made. The interest was due from the city to one of the parties, which one, depending upon the question whether the plaintiff’s obligation to Brown-Crummer Company had been paid and satisfied — a question to be settled between plaintiff and Brown-Crummer. If the plaintiff executed his assignments as' collateral only to secure payment of notes which he executed to the Brown-Crummer Company, and if he has fully paid and satisfied the notes, then, of course, BrownCrummer Company has no claim for the interest. A problem is presented which might easily have been solved by the BrownCrummer Company being impleaded in the present action and the city depositing in court the full amount of interest due from the time of the completion and acceptance of the sewer until October 4, 1923, to be paid to whoever was entitled to it. Under all the circumstances, the plaintiff cannot recover in this action, but no good reason appears why he may not interplead in the action pending between the Brown-Crummer Investment Company and the defendant city. The judgment is affirmed.	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The opinion of the court was delivered by Mason, J.: This action was brought for the price of advertising calendars furnished by the plaintiff, located at Joliet, Ill., to the defendant, at Kansas City, Kan., upon a written order. The defend ant, among other things, relied upon a right of countermand within a stated time, which he claimed was given him by an oral agreement entered into before he signed the order. Judgment was rendered for the defendant and the plaintiff appeals. The order was taken August 26, 1921, by a traveling salesman, whose authority extended only to soliciting orders, to be sent .to his employer for acceptance or rejection, so that no contract resulted until the order was accepted by the plaintiff. The plaintiff’s cashier and credit manager testified that the order was received August 29, 1921, and perhaps an acknowledgment and acceptance at that time may be inferred, for there seems to have been no contention that there was not a timely acceptance. At any rate the evidence in behalf of the plaintiff was that the goods were shipped September 16, 1921, and that the direction to cancel the order was dated September 19 and received September 21, 1921, so that a finding would have been warranted that the order was accepted at least as early as September 16, and hence before the attempted cancellation referred to. The defendant testified to writing a letter to the plaintiff about September 5 notifying it that he had sold his business, but produced no copy of the letter, and this testimony may not have been given weight. The defendant testified that before he signed the order it was orally agreed that he might cancel it within thirty days if he sold his business, and that he did so. The written order contained provisions that no oral agreements would be recognized, and that it was not subject to cancellation. From the time it was accepted it became a binding agreement in writing and its terms could not be varied by any oral agreement made prior to its execution. The usual parol-evidence rule applies in that situation. (22 C. J. 1114; Kessler v. Smith, 42 Minn. 494; Colles v. Lake City Electric R. Co., 22 Ind. App. 86; Reeves & Co. v. Bruening, 13 N. D. 157; Ohio E. Co. v. Wisconsin-Minnesota L. & P. Co., 161 Wis. 632.) At the time .the testimony referred to was offered, the trial judge stated that it was admitted on the theory that it went to the question of execution, being directed to the proposition that the salesman who took the order agreed that he would not send it in to the plaintiff at once, but would hold it for further directions from the defendant. This distinction was not preserved, however, in the testimony or in the instructions. The jury were instructed, in substance, that they might give effect to the oral agreement as one allowing the defendant a right to countermand the order after its acceptance by the plaintiff. No appearance has been made in this court in behalf of the defendant, and considerations in its favor may exist to which the attention of the court has not been directed. Other issues were presented, but so far as we^ discover there is nothing to show that th'e verdict was not based upon the evidence of the modification of the written contract by a prior oral agreement, in reliance upon the instruction referred to, which, for the reasons indicated, we hold to be erroneous. The judgment is reversed with directions to grant the motion for a new trial.	[ -80, -4, -4, -115, 26, 96, 40, -102, 112, 97, 55, 83, -23, -57, 20, 123, 63, 125, 85, 122, 84, -109, 6, 9, -46, -77, -37, -51, -75, 91, 116, 86, 76, 32, -62, -105, -26, -62, -59, 22, -34, 0, -71, -20, -39, -120, 48, 59, 16, 74, 65, -114, -13, 46, 24, -53, 105, 44, -21, 9, -48, -16, -101, 15, 125, 22, -109, 36, -102, 7, -40, 14, -112, 49, 3, -32, 114, -74, -58, 124, 109, -7, 8, 98, 99, 34, 16, -19, -4, -104, 46, 122, -115, -90, -80, 88, -118, 109, -66, -97, 52, 16, -121, -2, -6, 29, 31, 44, 11, -118, -78, -125, 31, 126, -98, 13, -17, -110, 21, 81, -49, 112, 92, 71, 58, -101, -114, -76 ]
The opinion of the court was delivered by Burch, J.: The action was one to recover on a fire insurance policy covering stacked grain which burned. Plaintiff prevailed, and defendant appeals. The company is a mutual fire insurance company, organized and operating pursuant to statute which authorizes adoption of by-laws (R. S. 40-436), a printed copy of which must be attached to each policy, and which form part of the contract between insurer and insured (R. S. 40-441): A by-law of the company provides that in the absence of agreement indorsed on the policy, the policy shall be void if the subject of insurance be personal property encumbered by chattel mortgage. Plaintiff’s written application for insurance contained no questions and answers and made no reference to interest of the insured in the property or encumbrance upon it. When the application was made nothing was said by the company’s solicitor or the applicant about title or encumbrance. When the policy was issued it was delivered to the solicitor for the insured. The insured did not call for the policy or read it until after the fire. The property was covered by chattel mortgage- and no agreement to insure it was indorsed on the policy. The court reformed the policy by striking out the by-law, and the insured recovered on the reformed instrument. There was evidence the insured was mentally subnormal, but he seems to have had wit enough to rent land, to plant and harvest grain, to borrow money by means of chattel mortgage on the crop, and to insure the crop. In the case of Humble v. Insurance Co., 85 Kan. 140, 116 Pac. 472, a referee found in favor of the insurance company. The district court granted Humble a new trial, and the insurance company appealed. The application for insurance was oral, nothing was inquired or said about encumbrances, and the policy was issued containing the standard provision relating to encumbrances. The subject of insurance was encumbered by chattel mortgage. The syllabus reads: “Where a policy containing a clause prohibiting encumbrances is issued on an oral application and no inquiries are made as to mortgages or encumbrances on the property, and no representations in regard to the encumbrances are made, and the insured does not intentionally conceal the facts, and is not guilty of any misleading conduct, the existence of a mortgage on the property will not invalidate the policy nor prevent a recovery from the insurer.” (Syl. 115.) The judgment of the district court granting a new trial was affirmed, the case was retried, Humble recovered, and the insurance company again appealed. (Humble v. Insurance Co., 91 Kan. 307, 137 Pac. 980.) The judgment of the district court was again affirmed. A rehearing was granted, and a majority of the court, adhering to the judgment of affirmance, concurred in a brief opinion, which follows: “On rehearing it is earnestly insisted that the property insured was already encumbered, and that on this account upon principle and by the weight of authority the plain terms of the policy — standard form — relieve the company from liability. The majority of the court, however, are of the opinion that, until the legislature shall prescribe the terms and effect of a policy, the insured who is asked [nothing] and who answers nothing respecting encumbrances on the property, and who pays his money in the belief that he is procuring insurance, should not be held bound by the. encumbrance clause.” (Humble v. Insurance Co., 92 Kan. 486, 141 Pac. 243.) The decision is not controlling in the present case, but it may be noted that it is contrary to the clear weight of authority. (26 C. J. 184.) Another list of cases may be found in 28 A. L. R. 808 and following pages. Neither Corpus Juris nor the A. L. R. note disclose fully and correctly the state of the law on the subject, a scientific treatment of which would account for and narrow the ground of difference in judicial opinion. The present case is not one in which the terms of the application and the policy differed, through fault of the company from those agreed on by the insured and the company’s solicitor when the application was made. The negotiations did not extend to the subject of encumbrance on the property. Likewise, the case is not one involving misrepresentation, concealment or nondisclosure on the part of the insured. The subject of encumbrance on the property was withdrawn from the category of inducement to contract, and was made one of policy provision. Mortgaged chattels are not insured unless the policy bears an indorsement bringing them within the scope of the contract. Also, the case is not one in which the policy was issued after the company had information that the property was mortgaged, and record of the mortgage did not afford constructive notice. The company was insuring the grain, not buying it, and was not among those who, on account of the registration statute, must search the records. (R. S. 58-301.) Without any statute on the subject, the company was not forbidden to insert in the policy ordinary provisions common to such instruments, although not embraced in the application. (Blunt v. Fidelity and Casualty Co., 145 Cal. 268, 270.) The insured was bound to know the policy would be in the form usually issued by the company. (Insurance Co. v. Darrin, 80 Kan. 578, 582, 103 Pac. 87.) This rule has special application to policies issued by mutual companies to members. It is not expected the application will contain all the terms and conditions of the policy to be issued. (Commonwealth, &c., Ins. Co. v. Knabe Co., 171 Mass. 265, 270.) The fact that the application is brief and contains no reference to essential matters shows it was not intended to be a full exposition of the contract. (Ginners’ Mut. Underwriters’ Ass’n v. Fisher, [Tex. Civ. App.] 222 S. W. 285, 287.) Members of mutual fire insurance companies are presumed to have knowledge of the company’s by-laws affecting validity of policies issued (Wilson v. Union Mutual Fire Ins. Co., 77 Vt. 28), and of the conditions of insurance as determined by the by-laws (Goldberg v. Seneca, Sigel & Rudolph M. F. Ins. Co., 170 Wis. 116). When the charter of a mutual company contains a provision limiting risks to instances in which the insured has unencumbered fee simple title to the buildings insured, and the charter is made a part of the contract of insurance, members are not permitted to plead ignorance of the provision (Ill. Mutual Fire Insurance Co. v. Marseilles Manufacturing Co., 6 Ill. 236), and in all cases in which a mutual company is authorized to make by-laws which become a part of the contract of insurance, the by-laws are as binding as the policy itself. (Douville v. Farmers’ Mut. Fire Ins. Co., 113 Mich. 158; Swett v. Antelope County Farmers Mutual Ins. Co., 91 Neb. 561; Brenn v. Insurance Co., 103 Kan. 517, 175 Pac. 383.) In the case of Van Buren v. St. Joseph Co. Village Fire Ins. Company, 28 Mich. 398, the policy embraced the by-laws of the association, which provided the policy should be void if the property insured were mortgaged for more than half its value. The written application, also made a part of the policy, contained no questions or answers relating to value of the property or encumbrances upon it. Justice Christiancy, delivering the opinion of the court, said: “Under the charter and by-laws of this company, of which the plaintiff, with all others insuring in it, became a member, and to which he and they assented as the law of their association and a fundamental principle of the contract of insurance, it was unnecessary for the company to enter upon this inquiry. Everyone applying for and receiving insurance was himself, by this fundamental article of his own agreement, bound to know whether the property he was getting insured was mortgaged to more than half its value, etc., and that if so mortgaged he had no right to have it insured in the company, and solemnly pledged himself that it should not be, and that the insurance would be void, and could not be held valid, without allowing him, in violation of his agreement with them, to commit a legal fraud upon his associates, by compelling them to assume a risk in his behalf which he, as a condition of membership, and by the act of becoming a member, had agreed they should not assume. He was bound to know that the obligation of ascertaining whether the property was thus mortgaged did not rest upon the company, but that he must decide it for himself at his own peril (at least unless he informed them of the exact amount of the incumbrances, and of his own estimate of the value, and asked them to determine its value, and they should do so for themselves).” (p. 409.) The doctrine of the Michigan case must be accepted as sound, or the statute relating to fire insurance by mutual companies amounts to nothing. It is true that when the application was signed the applicant was not a member of the company and the application made no reference to the by-laws. (See Broady v. Fire Association, 94 Kan. 245, 146 Pac. 343.) The applicant cannot, however, accept and enforce the policy free from the law governing its issuance, or "keep the policy and avoid the by-laws.” (Smith v. Insurance Co., 82 Kan. 697, 703, 109 Pac. 390.) The statute relating to- by-laws of mutual insurance companies authorizes such by-laws as the directors may adopt, not in conflict with the constitution or laws of the state. (R. S. 40-436.) It may be assumed such by-laws must be reasonable and pertinent to the company’s business. The by-law under consideration is of that character. It adopts the encumbrance provision of standard-form policies. The statute provides not merely that by-laws shall be attached to every policy issued, but that the by-laws “shall become a part of the contract between the insurer and the insured.” (R. S. 40-441.) The result is that, by authorizing by-laws, requiring them to be attached to each policy issued, and making them part of the contract of insurance, the legislature has done just what was suggested in the Humble case. For all purposes of the law, the legislature has prescribed the terms and effect of mutual fire insurance policies. In this instance the contract contained the staple encumbrance provision, and notwithstanding the fact the insured was asked nothing and said nothing about a chattel mortgage on his grain when he applied for insurance, he is bound by his contract. The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for defendant.	[ -76, 120, -44, -67, 0, 96, 58, -6, 66, -95, 39, 83, -49, -58, 21, 41, -42, 93, -59, 42, -42, -93, 27, 66, -42, -37, -13, -60, -79, 122, -17, 78, 76, 32, -126, 85, -90, -54, -63, 92, -118, 15, 59, -3, -35, 120, 52, 107, 116, 75, 113, -97, -13, 44, 25, -61, 9, 40, 107, -71, -15, -8, -117, 7, 127, 16, -79, 36, -108, 101, 112, 14, -112, 49, 1, -24, 115, -90, -122, 52, 7, -101, -127, 102, 99, 32, 53, 111, -116, -120, 39, -50, 47, -92, -110, 89, 34, 10, -73, -99, 116, 16, 38, 124, -21, 84, 29, 108, 5, -114, -44, -77, -113, 100, 24, -53, -17, 3, 32, 85, -49, -88, 92, 65, 120, 63, -98, -38 ]
The opinion of the court was delivered by Hopkins, J.: The action was one in replevin to recover possession of ninety-six steers claimed by the plaintiff under a chattel mortgage. At the commencement of the action the plaintiff obtained possession of seventy-four of the steers, sold them, and retained the proceeds. Lind answered, and also filed a cross petition asking judgment against Beeler for the value of the steers so taken. Trial to a jury resulted in a finding that the plaintiff was not entitled to the steers, and'verdict for Lind on his cross petition for $6,290. Judgment was entered for the defendant on the verdict, and plaintiff appeals. The facts are substantially as follows; Beeler resides at Kinsley. He owned 933 head of cattle, located on a ranch near Syracuse, and on October 23,1922, sold them to E. B. Swayze, who owned a ranch near Ashland. Swayze gave Beeler his note for $47,910 in payment (the full purchase price), secured by mortgage on the cattle. Swayze took the cattle to his ranch in Clark county, where they were intermingled with some 1,200 other cattle. Beeler recorded his mortgage in Clark county. February 18, 1923, Swayze sold 300 head of cattle to Lind and W. H. Hyle. The cattle were later cut out of the herd by a “straight cut.” Two hundred were taken by Hyle and 100 by Lind. Lind paid Swayze in two checks, one for $1,000 and one for $5,850. Hyle paid in two checks, one for $3,000 and one for $10,748. Some days afterwards Beeler met Swayze in Kansas City. Swayze told Beeler he had sold 300 head — 200 of Beeler’s and 100 of his own. Beeler asked to whom the cattle were sold and for what price. Swayze replied that he had sold the cattle to Lind and Hyle, of Saffordville, for $68 per head. Beeler asked about the money. Swayze replied that he was on his way to Kinsley to check the matter over and make settlement, and he thereupon turned over to Beeler Hyle’s check for $10,748. Some further conversation was had, in which Swayze stated that he had some money coming in in a few days and would send the balance to Beeler. Several weeks elapsed, when Beeler called Swayze over the phone and asked him to come to Kinsley and settle the difference on the sale of the cattle. Swayze went to Kinsley June 9, 1923. There is a conflict about what was said. Beeler says Swayze told him he was out the price of a carload of cake for the cattle, and Beeler agreed to stand part of the expense. They figured the price of 200 cattle at $68 per head, which, after deducting the Hyle check, left a balance due Beeler of about $2,800. Beeler agreed to take $2,000 and let the remainder go toward defraying the expense of the cake. Swayze had no money, but agreed to give Beeler his note for $2,000, secured by mortgage on some cows, heifers and calves. The note and mortgage were executed June 9, 1923. On July 9 Beeler went to Swayze’s ranch, had the cattle rounded up and counted. It appeared that Swayze was about 88 head short. Swayze contended he was not. Beeler later investigated and found that 285 instead of 200 of the Beeler steers had been taken to Saffordville. He returned to the Swayze ranch, procured Mrs. Swayze’s signature to the $2,000 mortgage, and then filed this action in replevin. The original mortgage of $47,910 from Swayze to Beeler, among other things, provided: “And it is further agreed that in case of a sale or disposal or attempt to sell or dispose of the goods and chattels herein mortgaged, or a removal of or attempt to remove the same from the county aforesaid, or an unreasonable depreciation in value, or if from any cause the security shall become inadequate, or the party of the second part shall deem himself insecure, then and thenceforth it shall be lawful for the party of the second part, his heirs, executors, administrators or assigns, or his authorized agent, to enter upon the premises of the said party of the first part, or any other place or places wherein said goods and chattels aforesaid may be, to remove and dispose of the same.” Swayze alleged in his answer that at the time of the purchase of the cattle from Beeler it was agreed that Swayze should sell all or any part of the steers and pay Beeler for each lot sold the average price per head, and that Swayze should have credit on the $47,910 note and mortgage 'for the cattle sold and accounted for. He also alleged that he (Swayze) sold to Lind and Hyle 200 cattle bought of the plaintiff Beeler, and 100 of similar cattle owned by Swayze. In the answer filed by Lind it was alleged that at the time of the sale of the steers by Swayze to Lind and Hyle, Swayze was acting as the agent of the plaintiff, he (Swayze) having been orally authorized to sell the same, and that the sale of said steer's was in fact the act of his principal, the plaintiff, and that by said sale the mortgage on the steers so sold to these answering defendants was released. Also— “Further answering, these defendants allege that after the sale of said steers by said Swayze to these defendants that said plaintiff was fully advised by said Swayze of all the facts and circumstances connected with said sale, and with knowledge of such facts accepted a portion of the proceeds thereof- and some additional security and thereby ratified and confirmed the act of said Swayze in selling said steers.” To the defendant’s answer and cross petition the plaintiff Beeler filed a verified reply. Lind’s defense was that Beeler authorized Swayze to sell the cattle and that he (Beeler), in accepting the $2,000 mortgage, had ratified the sale. The plaintiff contends that the trial court erred in admitting evidence of the alleged authority given 'to Swayze to sell the cattle. The evidence objected to was of conversations had before and at the time of the sale of the cattle by Beeler to Swayze and the execution of the original purchase-price mortgage by Swayze to Beeler. Swayze testified: “Q. At the time of the purchase of these cattle by you from Mr. Beeler, what was said by you or by him, in substance, as to the disposition of them, the sale of them? “(Objected to as incompetent, irrelevant and immaterial. By the court: Overruled.) “A. Well, sir, it was talked over before that, that I was to carry these cattle out to my ranch, take care of them-, and the first man in Kansas, eastern Kansas, or anywhere, that I could sell them to in carload lots or better, that I had the privilege. There was several conversations. In fact, we were together, I expect, on this trade altogether three days, maybe longer; made one or two pretty long drives together. It was conceded between him and I that I was to take these cattle and take care of them and sell them either — well, within the terms of this mortgage.” A motion to strike out this testimony was overruled. The mortgage was executed in the afternoon or evening of the third day mentioned. The evidence should not have been admitted. The plaintiff contends that the question of ratification should not have been submitted to the jury; that the issue was eliminated from the case by the answer and testimony of Swayze. Swayze’s answer contained this language: “Further answering, defendant states: That on the 18th day of February, 1923, he sold' J. A. Lind and W. M. Hyle 300 head of cattle ranging on defendant’s ranch in Clark county, Kansas, including, as nearly as could be determined by range count, 200 head of the cattle bought of plaintiff (Beeler) and 100 head of similar cattle owned by defendant.” Swayze testified that he had sold 300 head to Hyle and Lind, and that he claimed 100 of them were his cattle (not Beeler’s). The record is convincing that, with the information that Swayze had sold 200 of the Beeler cattle and 100 of his own, Beeler and Swayze adjusted their differences at Kinsley on June 9, at which time Swayze gave Beeler his note for $2,000 secured by chattel mortgage on the cows and heifers — the same mortgage Mrs. Swayze afterwards signed when Beeler was at the Swayze ranch in July following. Swayze’s testimony, however, was uncertain, confusing, conflicting. He made statements from which the inference could be drawn that the $2,000 mortgage was to cover whatever shortage there was in steers delivered to Lind and Hyle. In connection with her signing of the mortgage Mrs. Swayze testified: “I remember in the month of July, 1923, having executed and signed a chattel mortgage covering some cows to Mr. Beeler. It was about the 27th or 28th of July, 1923. Mr. Beeler and Dari, my husband, were present when I signed the mortgage. I never signed a note; I signed only one place, and that was the chattel mortgage. I was not at that time, nor now, under any obligation to Mr. Beeler. I owe him nothing. I signed the mortgage at my husband’s and Mr. Beeler’s request. The mortgage covered my cattle branded SS. That is the only mortgage I signed, dated June 9, 1923. I signed it on the 27th or 28th and for payment of $2,000. . . . Mr. Beeler took the mortgage from his pocket and said, ‘Mrs. Swayze, I want you to sign this mortgage with Mr. Swayze, and it will fix up this little affair between Mr. Swayze and myself.’ I don’t believe I said anything in answer to that. I read the mortgage and Mr. Beeler handed me a pencil and I signed it, and Mr. Beeler thanked me for signing it and said that it fixed up this little affair between Mr. Swayze and I.’ That was what he said, that it ‘fixed up’ (I am sure that was the expression he used) ‘this little difference between Mr. Swayze and myself.’ He said that made the mortgage all right. ‘‘Cross-examination: “I signed the chattel mortgage for $2,000 about the 27th of July, 1923. It was the chattel mortgage my husband had previously given to Mr. Beeler. It was signed at the ranch, twelve miles north of Ashland. My husband first approached me about this $2,000 mortgage and we talked the matter over between ourselves, without Mr. Beeler being present. . . . All I do remember is that Mr. Beeler requested me to sign this chattel mortgage and said it would fix up this little difference between my husband and Mr. Beeler. “Q. After you signed the chattel mortgage, he of course told you that that made the mortgage good? A. Yes. “Q. He was at that time talking about the $2,000 chattel mortgage? A. Yes. “Q. You don’t remember any other conversation about this chattel mortgage except what you have stated? A. No. All I knew about the shortage of the steers is what Dari told me. From what he told me, I signed the mortgage to fix up the difference between him and Mr. Beeler. Mr. Beeler didn’t tell me what the differences were between him and Swayze. He said ‘this little difference’; that is all.” It is clear from Mrs. Swayze’s testimony that she and. Beeler were talking about the $2,000 chattel mortgage which had been given to adjust the shortage on the 200 head of cattle — not the 85 head in excess of that number which Swayze sold to Lind and Hyle, and which are the subject of controversy here. Yet another inference may be drawn from her statement that from what her husband told her about the shortage of steers, she signed the mortgage. The inferences, though slight, drawn from the testimony of Mr. and Mrs. Swayze, when considered in connection with Lind’s answer, were sufficient to require submission of the issue to the jury. On this issue the court instructed the jury: “There is another angle to this case. Defendant pleads that after Beeler had notice of the sale to Lind, that Swayze and Beeler entered into a settlement by reason of certain note and chattel mortgage for $2,000 which was given by Swayze to cover the shortage of cattle that had been taken from the Beeler herd. The burden of proof is upon the defendant in this case to establish the fact, by a preponderance of the evidence, that Beeler knew of the sale of the cattle to Lind, and that, after knowing it, he accepted in satis faction this note and chattel mortgage for $2,000 for the payment of the shortgage of those cattle. If the defendant has established that fact by a preponderance of the evidence, then the defendant is entitled to a verdict in his behalf.” The instruction was misleading and prejudicial in that it failed to clearly state the issues. Doubtless the jury was led to believe that if Beeler accepted the $2,000 mortgage he ratified the sale of the 85 head of steers; whereas, it was Beeler’s contention, and the evidence convincing, that the $2,000 mortgage was in payment of the balance due on the 200 head. The plaintiff complains of the exclusion of two letters, one to Beeler by Marion T. Coggins, and the other Beeler’s reply thereto. Swayze, over objection, was permitted to testify regarding a conversation with Beeler at Ford, Kan., after the filing of the action. The letters were in rebuttal to his testimony. The court should have rejected the Swayze testimony; but not having done so, should have permitted the plaintiff to offer testimony in rebuttal. The judgment is reversed and the cause remanded with directions to grant a new trial. Harvey, J., not sitting.	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The opinion of the court was delivered by Burch, J.: The action was one to quiet title to real estate against a mortgage given by plaintiff and her husband, George Daniel Bryant, to Daniel Hartley. The claim was that the purchase price of the real estate was a gift from Hartley to plaintiff and her husband, from whom she has been divorced, and that the mortgage was given as a check on Bryant’s improvidence, and without consideration. Hartley is dead, and his executor answered, praying for foreclosure of the mortgage. Plaintiff recovered, and the executor and other defendants appeal. Previous to the year 1918, Hartley lived in Kansas City. In February of that year he gave up his residence in Kansas City and went to Denver, Colo., where he lived with a daughter, Mrs. Harmon, until his death, which occurred in June, 1922. He was about eighty years of age at the time of his death, and his heirs were Mrs. Harmon; another daughter, Mrs. Whitaker; and his grandson, George Daniel Bryant, who was the son of a deceased daughter. Hartley left a will, executed at Denver in July, 1920, in which he recited advancement to Mrs. Harmon of $1,143, to Mrs. Whitaker of $1,050, and to George Daniel Bryant of $910, to be deducted from bequests given them in the will. At her father’s request, Mrs. Harmon went to Kansas City to assist him in settling his affairs preparatory to removing to Denver. Plaintiff’s father, Zeno L. Easom, assisted Hartley in closing up his business and accompanied him when he went to Denver. Hartley told Easom in Kansas City that he was growing old, that he wanted to give all of his heirs something before he died, and that the time to do it was before he went to Denver to live. In execution of this purpose, an advancement to Mrs. Whitaker was arranged in part at least, at the office of Reed & Reed, in Kansas, City, Mo. Hartley, Mrs. Harmon and Easom were present. Easom testified that while at the office of Reed & Reed, Hartley told Reed & Reed he was going to Denver, and wanted to give something to all of his heirs. Mrs. Harmon, who was a witness adverse to plaintiff, • did not dispute the fact that this conversation occurred. She testified that her father told her he was going to give the same to each, that her father had advanced to her as much as $1,143, the sum stated in the will as having been advanced to her, and that she knew her father, gave Mrs. Whitaker about the same amount he gave the others. The only other heir was plaintiff’s husband, George Daniel Bryant. Bryant held a contract of purchase for the lots in controversy, on which he lived. On February 19, 1918, Hartley, Mrs. Harmon and Easom went to a bank in Kansas City, from which Hartley drew $200. He gave the money to Easom, and directed Easom to go to Independence and pay his tithes — a gift to the church. One hundred dollars of the money was a gift to his great grandson, the infant child of the plaintiff, and George Daniel Bryant. From this bank Hartley, Mrs. Harmon and Easom went to the Peoples Bank, where Hartley transacted some business with Mrs. Harmon. Easom testified that in the course of the transaction Mrs. Harmon said, “Pa, don’t forget George,” and Hartley said, “I am not going to forget George.” Hartley then instructed Easom to go to the office of Merriam, Ellis & Benton, who held the contract, and ascertain the amount necessary to pay it up. Hartley and Mrs. Harmon waited at the bank. Easom did as directed, ascertained the amount was $795, and reported to Hartley and Mrs. Harmon at the bank. Hart ley then drew from the bank $795, gave it to Easom, and told Easom to pay the amount due on the contract. Easom executed this commission, and received a deed to the lots to George Daniel Bryant and his wife, Marie Louise Bryant, Hartley having specified the deed should be made in that way, because he was giving the property as much to George’s wife as to George. At the same time the note and mortgage in controversy were prepared for execution. The note was for $795, payable five years after date, with interest at the rate of six per cent per- annum, and the mortgage covered the property described in the deed. Hartley said he wanted the mortgage in order to keep George from selling the place and squandering the money; he did not want George and his wife to be without a home. Easom gave the instruments to a notary, who that night procured the signatures and took the acknowledgments of George and his wife. Before the note and mortgage were presented to plaintiff for execution, her father explained to her that Hartley had paid off the balance due on the home, and was taking the mortgage so she and her husband could not sell it. A day or two later, while at the Easom home, Hartley told Mrs. Easom that he had fixed it so that Marie and the baby would always have a home, that the mortgage had been taken so George “couldn’t go through with it,” and that the money paid for the property was to come out of George’s inheritance. As indicated above, Mrs. Bryant was granted a divorce from her husband, and the decree awarded the lots to her. After plaintiff obtained the divorce, Hartley wrote her a letter demanding interest on the mortgage, although according to the terms of the note and mortgage no interest was due. This led to some correspondence, in which Hartley exhibited extreme partisanship for his grandson. In a letter to plaintiff’s attorneys dated April 1, 1920, he said: “As the court has taken this property away from my grandson, it is up to Mrs. Bryant to see that the debts are paid. . . . Mrs. Bryant is no longer the wife of my grandson. She has given up all claim on him, so she has nothing to do with what I give my grandson. I am sorry to say that Mrs. Bryant and her people have had no pity on my grandson. They have obtained possession of all that belonged to him, and robbed him of his babies through falsehoods in court. So it is up to me to look after what little is left for him and his sons.” The foregoing evidence was amply sufficient to warrant the court in finding that Hartley made a gift to his grandson, as prospective heir, of the money which procured the deed to George and Marie Bryant, and that the note and mortgage were given without consid eration. Evidence was introduced by defendants indicating that no gift was intended, and that Hartley expected the money which he advanced to be repaid with interest. Defendants say plaintiff failed to prove her case by testimony of the character and cogency necessary to establish a gift inter vivos, and that to determine the question this court must examine and consider all the evidence. Defendants say further that a vital principle of law is involved. With the latter statement the court agrees. However, the principle which the court has in mind is that the rule requiring a gift to be proved by clear and convincing evidence is a rule to be applied by the trial court, just as the rule in criminal cases that guilt must be proved beyond a reasonable doubt is a rule to be applied in the trial court; and this court1 will not on appeal set aside a finding of gift ®r guilt sustained by substantial competent evidence, because the record discloses evidence warranting a. contrary finding. The principle was applied in the case of Klein v. Blackshere, 113 Kan. 539, 215 Pac. 315, which involved an oral gift of land. The judgment of the district court is affirmed.	[ -16, 110, -40, 46, 58, 96, 10, -6, 100, -128, -75, 91, 105, 88, 5, 109, 86, 13, -15, 106, 68, -77, 7, 41, -46, -45, -15, -43, -71, 124, -12, 87, 76, 40, 74, -107, -26, -62, 69, 20, 14, -124, -87, -27, -35, 80, 52, 59, 84, 76, 69, -66, -13, 43, 29, -38, 108, 42, -37, -71, -48, -72, -118, -123, 127, 17, 16, 32, -112, -89, 72, 40, -104, 117, 0, -19, 115, -74, -106, -12, 103, -117, 8, 54, 103, 113, -27, -23, -72, 24, 14, -13, -115, -90, -112, 89, 1, 97, -66, -103, 121, 0, 15, -10, -26, -105, 13, 108, 13, -113, -42, -109, 43, -6, -101, 27, -5, -123, 32, 113, -113, 34, 93, 71, 122, -77, -114, -8 ]
The opinion of the court was delivered by Johnston, C. J.: In this action the plaintiff, Electa V. Donohue, sought the construction of the will of her deceased husband and a judgment quieting her title to certain real estate claimed by Lizzie Lapham and Haskell Lapham under a provision of the will. Under the construction placed upon the will by the trial court,' a part of the property was adjudged to belong to the defendants. Plaintiff appeals. The material parts of the instrument of which a construction is asked are as follows: “2nd. I give, devise and bequeath unto my said wife, Electa Y. Donohue, all of my real estate situated and located in the county of Hamilton and state of Kansas or elsewhere that I may own or possess at the time of my death forever. “3rd. I give and bequeath unto my said wife all of the personal property, etc., and so forth. “4th. I give and bequeath unto my said wife all moneys in banks and elsewhere, bank notes, bills of all kinds, etc. & etc. I now constitute and appoint my said wife Electa V. Donohue my executrix without bond etc., etc. “5th. I further devise and bequeath at the death of my said wife I give and bequeath one-half of the estate she may have as follows: One third of one-half of said estate to my nephews and niece herein named in equal proportions to Edwin Skinner, Robert Donohue Watson and Iva Pratt; and one- third to my sister Lizzie A. Lapham, and one-third to my nephew A. Haskell Lapham; and if either Mrs. Lapham or A. Haskell Lapham should die, the amount herein named shall descend to the other. It is distinctly understood that I only devise one-half of my wife’s estate at her death, that is this day agreed between us in this will, in section fifth.” John J. Donohue, the husband of the plaintiff, died July 17, 1918. The will which he made was admitted to probate on August 22,1918. The property of the plaintiff and her husband was the accumulation they had made after their marriage in 1880, part of which stood in the name of the husband and a part in the name of the wife. They had no children. In July, 1906, each of the parties made a will, in which the husband devised everything to his wife and the wife everything to her husband. Since her husband’s death the will of plaintiff had been destroyed and another made. The second clause of the will, in plain and unambiguous language, gives to the wife forever all the real property owned or possessed by the testator. In subsequent clauses he bequeathed all personal property including moneys, bonds, notes and bills, that he should own at the time of his death. There can be no question that the words of the clause devising his real property shows an obvious intent to give to the wife outright a fee title to all the real estate of the testator. The defendants rightly contend that the intention of the testator is to be ascertained from a consideration of all the provisions of the instrument, and they insist that the fifth clause of the will discloses an intention to limit the devise to one-half of the real estate owned by the testator and only a life estate in the remaining half, which at her death should pass to the children named in the proportions stated. An examination of that provision shows that it does not purport to devise the property of the testator, but did undertake to give to his relatives one-half of the estate which the wife might own at her death. The provision may be construed as the expression of a desire that the wife should thus dispose of a certain share of her own property owned by her at her death, but it was not a devise of the property of which the testator died seized. At the most it was a precatory provision, an expression of a desire that she give the children a share of the property which she might own at the time of her death. (Johanson v. Johanson, 118 Kan. 103, 233 Pac. 1039.) There was nothing in the terms used restricting the gift made to the wife, but the plain import of the language used was an attempt to devise property which he did not own — an attempt to devise a part of her estate, however much she might accumulate in the future or from whatever source derived. Possibly the testator may have entertained the notion that upon marriage the legal existence of the wife was merged in that of her husband; that in the eyes of the law both are to be regarded as one person; that the husband is the one, and hence he had the right to dispose of her property. In any event, he had no right to devise the property owned by the wife any more than that owned by a neighbor. The later clause does not provide that the devise expressly made to her should be limited or reduced, but twice therein it is stated in explicit terms that he is devising her estate — a property which was not’ within his right of disposition. It is not a case of inconsistent gifts, nor an attempt to cut down the devise of his own property, but only purports to give the estate which the wife'owned at her death. To diminish or encumber an absolute gift it is necessary to find or supply language in the later clause equally as plain and unequivocal as in that of making the gift, expressing an intention to limit the devise already made. The language employed, given its ordinary meaning, does not create a trust in his property in favor of the children or reduce the devise to his wife, but is an attempt to say what disposition shall be made of the property of the wife. A will is to be interpreted and the intention of the testator determined by the language therein expressed. We cannot infer that he meant one thing when he said another; we cannot insert a provision that he was devising his own property when he expressly said that he was devising that of another. The words used in the clause upon which the defendants claim are explicit, and in their ordinary sense leave no room for an interpretation that the testator intended to restrict the unequivocal devise of all his real estate to his wife forever. It follows that the judgment must be reversed and the cause remanded with directions to enter judgment in favor of the plaintiff.	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The opinion of the court was delivered by Hopkins, J.: The action, based upon the federal employers’ liability act, was one to recover damages for personal injuries sustained by the plaintiff on account of the derailment of a hand car. The plaintiff recovered, and defendant appeals. The plaintiff was a section foreman for the defendant, having charge of seven miles of the defendant’s railroad near the town of Hardy, Okla. In the pursuance of his work he used a motor car and a push car furnished by the defendant. (Plaintiff owned the motor.) Both cars had been out of repair for some time prior to the accident. The evidence showed that the cars needed boxings and brasses for the boxing; that the wheels were out of alignment; that one of the axles was bent; that the worn-out boxes and bent axle tended to cause the wheels to climb the rails and leave the track. Plaintiff notified his superior officer, the roadmaster (Graham), of the condition of the cars, and requested repairs for them. Graham promised to furnish the necessary repairs. Some days before the accident the plaintiff’s wife, in his presence, told Graham that if she were in her husband’s place she would put the hand car in the tool house and let it stay there until they furnished the repairs. Graham replied, “Well, if he did he would lose his job.” He further stated that “if Mr. Palmer (plaintiff) would go ahead and use the motor car he would furnish repairs as soon as he could get them”; that “it was safe to use the car”; that “it was necessary to do so”; and that “he (plaintiff) would have to use it even if he had to walk and push it.” On the day of the accident, about four o’clock in the afternoon, Graham came to the place where the plaintiff and the section men were working near the north or west end of the section; ordered them to “load the car and trailer and to go to the east end and fix up a bad place”; to “get the car-on and hurry over there.” At this time he (Graham) brought and delivered to the plaintiff the repairs for the car. In accordance with such directions, the hand car and trailer were loaded and started to the east end, the trailer being attached by rope. They had gone about a quarter of a mile, were running at about twelve miles an hour, when the derailment occurred which resulted in plaintiff’s injury and the death of another member of the crew. In the derailment the section men were thrown forward upon the ballast, which consisted of rocks ranging from the size of one’s fist to the size of a man’s head, both outside and inside the track. The plaintiff, among other things, testified that while the boxing and various parts of the hand car and trailer were worn, he “did not consider it in a dangerous condition, or dangerous to use”; that he “did not believe anyone would get killed or hurt by the use of the car.” Graham, among other things, testified that whatever he told Palmer to do he had to do; that Palmer complained about the car; said it needed some brasses and boxing in line of repairs. He said, “I promised to get them for him.” Referring to conversation with Mrs. Palmer, he said, “I told them they would have to go ahead and use the motor car even if they had to get out and push it instead of using the pump car, because it is easier on the men and faster. I wanted them to understand that I wanted them to use it.” The plaintiff sued for $25,000. The jury awarded him $2,500, and answered special questions as follows: “1. Were the cars in. question defective at the time the accident occurred? A. Yes. “2. If you find the cars were defective, how long had such defects existed? A. Thirty days. “3. Did the plaintiff have equal opportunities with the defendant to know of any defects in the cars and any dangers incident thereto? A. Yes. “4. If you find that the cars were defective, were the defects such as to make them unsafe and dangerous to operate? A. Yes. “5. Did plaintiff report to the defendant that the cars were defective? A. Yes. “6. If you find that the plaintiff had reported to. the defendant that the cars were defective, when did he do so? A. During July and August. “7. If you find that the plaintiff had reported to the defendant that the cars were defective, had a reasonable time within which to repair them elapsed before the accident occurred? A. Yes. “8. If you find that the cars in question were defective and that plaintiff had equal opportunities with the defendant to know of such defects and appreciate the danger incident thereto, please state whether the plaintiff was negligent in continuing to use and operate the same? A. Yes, and defendant also.” The defendant admitted that the cars were defective; that the defects made them unsafe and dangerous to operate. It contends, however, that the plaintiff had equal opportunities to know of the defects and dangers incident to the operation of the cars; 'that a reasonable time within which to repair had elapsed before the accident had occurred, and that the plaintiff was barred from recovery because negligent in continuing to use the cars; that he assumed the risk. It argues that a servant assumes the risks arising out of the master’s negligence when he knows of such negligence and the risk created thereby; that there is, of course, the exception that, where a defect is not such as to make it dangerous to continue in the service, and there is a report or complaint and a promise to repair, the servant may, in reliance upon such promise, continue in the service for a reasonable length of time for repairs to be made, but if repairs are not made within such reasonable time he again assumes the risk; that, not only did the defects render it dangerous to continue using the cars, as to which defects plaintiff had full knowledge and as to which he made a report and secured a promise to repair, but he negligently continued to use the cars in their defective and dangerous condition, not only during the time reasonably required within which repairs could be made, but after such reasonable timé to repair had elapsed. On the other hand, plaintiff contends that he did not assume the risk; that he complained of the condition of the car; that the defendant promised to repair it; that plaintiff relied upon the promise; that he used the car in obedience to the command or orders of his superior officer, on assurance of its safety; that he may or may not have been guilty of contributory negligence. If he was, under the finding of the jury, that fact was taken into consideration in mitigation of his damages. He argues that he should not be held to have assumed the risk unless it appeared that the danger was both obvious and imminent. From a multitude of authorities cited by the parties to sustain their respective contentions, we conclude that the case turns on the question whether, under all the circumstances, the danger was so obvious, imminent and immediately threatening as to make it clearly imprudent for the plaintiff to continue in the line of his duty. Imminent danger is such danger as must be instantly met, which cannot be guarded against by calling on others for assistance. It occurs when the peril is manifest — that is, unquestionable — and is such as to constitute, at the time, an emergent danger. (Coffin v. Blackwell, 116 Wash, 281.) See, also, Kessler & Co. v. Southern Ry. Co., 255 S. W. 535, 200 Ky. -, where a distinction was recognized between acts which constitute negligence and acts which amount to confronting imminent and obvious danger. In Anderson v. Fielding, 92 Minn. 42, 46, it was said: “A servant is not chargeable with the assumption of the risk or with con tributory negligence as a matter of law by continuing to use for a reasonable time a machine or appliance which he knows to be unsafe, and appreciates the risk of using it, where he has complained of it, and the master has promised to remedy the defect, unless the appreciated danger is so imminent that a man of ordinary prudence would refuse to longer use it unless it was made safe. A reasonable time, within the meaning of this rule, is any period which does not preclude all reasonable expectations that the promise may be kept.” (Citing cases.) In Seaboard Air Line v. Horton, 239 U. S. 595, 60 Law. Ed. 458, the plaintiff, an engineer, was injured through an explosion of a water gauge on his engine. In order to protect him from injury in case of the bursting of the gauge, a thick piece of plain glass, known as a guard glass, should have been in position in slots arranged for the purpose in front of the gauge. When the plaintiff took charge of the engine he noticed that the glass guard was missing, reported it to his superior, and asked him for a new one. The foreman to whom he had applied agreed to procure one, but said that plaintiff in the meantime should run the engine without it. He did so for a time, and until the explosion of the water gauge, causing the injury. It was claimed there, as here, that the plaintiff assumed the risk of injury. It was also argued' that the plaintiff was guilty of contributory negligence. This contention, like that in regard to assumed risk, was based upon the ground of the obvious and imminent nature of the danger to the plaintiff arising out of the absence of the guard glass. The court held that reasonable reliance of an employee upon the employer’s promise to repair a defect was as good an answer to the charge of contributory negligence as it was to the contention that he assumed the risk, and that, as to both matters, the question was whether it could be said that the danger was so imminent that no ordinary prudent man, under the circumstances, would continue in the employment in reliance upon the promise. It was said that— “To relieve the employer from responsibility for injuries that may befall the employee while remaining at his work in reliance upon a promise of reparation, there must be something more than knowledge by the employee that danger confronts him or that it is constant. The danger must be imminent — immediately threatening — so as to render it clearly imprudent for him to confront it, even in the line of duty, pending the promise.” (p. 599.) In A. T. & S. F. Rld. Co. v. Lannigan, 56 Kan. 109, 115, 42 Pac. 343, it was said: “The employer is bound to act within a reasonable time after notice. The employee has still a reasonable time after the employer is in default before he is required either to quit the service or assume the risk.” In Foster v. Railway Co., 127 Iowa 84, it was said: “The waiver does not continue until the employer may by reasonable diligence effect the repair, but is suspended eo instante upon making the promise. . . . From that time on the risk is the master’s and not that of the servant, as long as the latter may reasonably expect the promise to be performed.” (p. 88.) In Swain v. Chicago R. I. & P. Ry. Co., 187 Iowa 466, it was said: “It would certainly not tend to strengthen the respect of fair-minded people for the law, if when a master has induced a servant to remain in his employment by promise to repair a defect in an instrument of the servant’s labor, and because of his failure to perform such promise the servant is injured, he may say to the injured person: ‘True, the tool I required you to use was defective; true, I induced you to continue in my service by promising to repair the defect; true, you did remain in reliance on the promise; and true, I did not make the promised repair, and you suffered injury thereby; but you should not have been so foolish as to place any confidence in my word or to be thereby persuaded to stay in my service. Your injury is, therefore, the fruit of your own folly, and I will make no compensation.’ ” (p. 490.) (See, also, Lehigh Valley R. R. Co. v. Skoczyla, 278 Fed. 378; Atlantic Corporation v. Harris, 275 Fed. 721; Goldhunter Mining & Smelter Co. v. Johnson, 233 Fed. 849; Railroad Co. v. Morris, 76 Kan. 836, 93 Pac. 153; Railway Co. v. Quinlan, 77 Kan. 126, 93 Pac. 632; Ahlstrom v. Kansas Milling Co., 85 Kan. 548, 550, 118 Pac. 57; Anders v. Railway Co., 91 Kan. 378, 137 Pac. 986; Daugherty v. Midland Steel Co., 23 Ind. App. 78; Swift & Co. v. O’Neil, 187 Ill. 337; Rothenberger v. Milling Company, 57 Minn. 461; Sapp v. Christy Bros., 79 Neb. 705; Highland Boy Gold Min. Co. v. Pouch, 124 Fed. 148; Lynn v. Omaha Packing Co., 88 Neb. 720.) In the instant case the plaintiff was justified in believing the repairs would be furnished by the continued and successive promises of the defendant. What transpired showed that he was justified in so believing. The roadmaster recognized the defects, procured the repairs and delivered them, but with the instruction to “hurry over to the east end” and repair the track. No time was given to repair the car. The plaintiff was directed to leave the repairs at the section house. The defendant, by this act, precluded the plaintiff from making the repairs at the time they were delivered, and thereby extended the time during which the plaintiff might continue to use the car without assumption of the risk on account of the car’s known defects. The circumstances do not, in our opinion, justify the conclusion that the danger encountered by the plaintiff was so obvious, imminent — immediately threatening — that no ordinarily prudent man would have undertaken to carry out the order given him. To so conclude would, in effect, charge the defendant with a reckless and utter disregard of the safety of its employees. Regard must be had to the situation which then confronted the plaintiff. It was his duty to obey the order. The lives of scores of others might be jeopardized if he failed at that moment. Under the circumstances the defendant may not avoid liability because of its own admitted dereliction. It is insisted that the court should have rendered judgment for the defendant on the special findings, nothwithstanding the general verdict. We have given consideration to the arguments of the parties, and are of the opinion that the answers were not so inconsistent with the general verdict as to require a judgment for the defendant. Complaint is made of the refusal to give certain instructions requested by the defendant, and the giving of others to which objection was made. We find no error in this regard that would warrant a reversal of the case. Other complaints that the court erred in overruling a demurrer to the evidence and in overruling motion for a new trial are not well taken. The judgment is affirmed.	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The opinion of the court was delivered by Marshall, J.: The plaintiffs sued to recover damages occasioned by the city so constructing a sewer as to cause sewage to flow into an open stream running across land owned by the plaintiffs. They recovered judgment, and the defendant appeals. The facts shown by the evidence were that the plaintiffs owned about 100 acres of land adjoining the city on the southwest; that the city had constructed á sewer on a street which ran east and west through the city; that the sewer became so clogged that sewage could not flow through it; that the city, to remedy the defect in the sewer, constructed a “by-pass” and diverted the sewage to a creek running through the plaintiff’s land; that the sewage caused the water in the creek to become foul; that the creek overflowed part of the land of the plaintiffs and deposited sewage thereon, which resulted in the loss of part of the crops and in the loss of the use of pasture land; that the plaintiffs suffered great personal incon verbenee caused by the sewage; that they were compelled to secure a new source of supply of water by attaching to the water pipes of the city; and that they filed with the city clerk a claim for the damages sustained by them. There were two trials of this case in the district court. The first trial resulted in a verdict for the plaintiffs for $2,500. Special questions were then answered by the jury as follows: “1. Q. If your general verdict is in favor of the plaintiffs and against the defendant city, what do you find to be the fair and reasonable market value of their land immediately prior to the injury complained of? A. $200 per acre. “2. Q. If your general verdict is in favor of the plaintiffs and against the defendant city, what do you find to have been the fair and reasonable market value of the land after the injury and at the end of four months after said sewer was diverted? A. $175 per acre. “3. Q. If your general verdict is for plaintiffs and against the city, what, if anything, do you allow plaintiffs as damages for expense of securing a new water supply? A. Nothing. “4. Q. If your general verdict is for plaintiffs, what do you find is the fair, reasonable value of plaintiffs’ farm at this time? A. $175 per acre. “6. Q. Did the defendant offer to construct a water'line from its. main across the farm of the plaintiffs so that they might have city water for domestic and other purposes? A. Yes.” A motion for a new trial was filed, which was sustained in the following language, as shown by the journal entry of judgment: "The court, being fully advised in the premises, finds that a new trial should be granted herein upon the sole item of damage to the land of the plaintiffs by reason of the wrongful and unlawful action of the defendant, if any. “Therefore, it is by the court ordered, decreed and adjudged that the defendant be granted a new trial upon the item of damages to the land belonging to the plaintiffs, to which the plaintiffs at the time duly excepts and excepted.” Upon the second trial a verdict was returned for the plaintiffs for $1,550, and special questions were answered as follows: “1. Q. If you find for the plaintiffs, what amount, if anything, do you allow them for the loss, if any, of the usable or rental value of plaintiff’s land? A. $400. “2. Q. If you find for the plaintiffs, what amount, if any, do you allow them for damages in securing a new water supply? A. $150. “3. Q. If you find for the plaintiffs, what amount, if any, do you allow them for the discomfort suffered as a result of noxious odors emanating from said stream? A. $1,000. “4. Q. Did the defendant offer to construct a water line from its main across the farm of the plaintiffs so that they might have city water for domestic and stock purposes? A. No. “5. Q. Could plaintiffs by fencing their pasture have used said pasture for stock in the summer of 1922? A. No.” Upon the motion for a new trial filed after the second verdict was rendered, the following order was made: “The above-entitled cause comes on to be heard upon the motion of the defendant herein for a new trial, and the court having heard the argument of counsel for the defendant, and plaintiffs being duly advised in the premises, finds that the verdict of the jury is excessive, and that the plaintiffs should remit thé sum of $500 from the item allowed by the jury for discomfort and inconvenience, and thereupon the plaintiffs in open court offer to remit said sum of $500, and the motion of the defendant for a new trial herein is by the court overruled and denied.” Judgment was then rendered in favor of the plaintiffs for $1,050. The defendant claims that “the court erred in refusing to limit the issues.” The issues submitted on the first trial were fairly stated in the answers of the jury to the special questions. The issues submitted on the second trial were also fairly stated by the answers of the jury to the special questions. The defendant objected to the court submitting more than damage to the land. What was included in the answers to the special questions on the last trial? Loss of the use of the land, the expense of securing a new water supply, and discomfort caused by the sewage in the creek. None of these, strictly speaking, was damage to the land in the sense that the soil was removed, material taken from the real estate, or injury to buildings or other property on the land; but each of the three items named arose out of the injury to the land caused by sewage flowing through the stream thereon. That the plaintiffs had a right to recover for those items cannot be seriously questioned. That they' grew out of the injury to the land must be conceded. The restriction as to the issues should be liberally construed, and the interpretation placed on that restriction by the trial court on the second trial should be upheld unless it clearly appears to be erroneous. Applying this rule of construction, it does not appear that the defendant has any just cause for complaint. The defendant urges that “the amount allowed for damages to usable value of farm is excessive and not sustained by the evidence.” The plaintiffs, by the wrongful act of the defendant, lost their water supply for their live stock, of which they had a goodly number, and lost the water for use in their home; they lost the pas turage of a portion of their land, and they lost a portion of the crops on some of the land. There was evidence which tended to show that the rental value of the pasturé was $48 a month, and there was evidence to show that the polluted water caused the death of some of their live stock, although nothing was allowed for that item. The use of the farm comprehended the use of the land for growing crops, the use of the stream for water for live stock, the use of the wells for water for the home, and the use of the property as a place in which to live. Some of these items were not capable of being measured in dollars and cents. The rental value of the land could have been proved, but that would not have measured the damage to the plaintiffs. They were not compelled to abandon their home and then accept as damage the rental value of the entire farm for the period that they were compelled to remain away from it. The court is unable to see why the judgment should be disturbed on account of the amount allowed by the jury for the loss of the usable value of the farm. The defendant attempted to prove that the sewer became clogged as the result of the wrongful acts of the Missouri Pacific Railroad, of which the defendant had no knowledge and to which the defendant did not consent. That evidence was excluded. Whatever may have been the truth concerning that matter, the defendant was not justified in diverting the sewage from the city into the stream on the land of the plaintiffs without compensating them for the damage they sustained. It was a taking of their property without compensation. The judgment is affirmed.	[ -16, 108, -100, -20, 26, -32, 40, -40, 73, -88, -9, 127, -115, -61, 29, 97, -29, -3, 116, 123, -42, -90, 3, -126, -102, -13, -69, -51, -72, 109, -28, -57, 76, 48, -62, -99, -30, -62, 85, -44, -58, 23, -119, 77, -19, 64, 52, 43, 98, 79, 53, 13, -13, 45, 25, -61, -87, 40, -5, 57, 65, -15, 40, -115, 95, 4, 48, 6, -100, -29, -38, 10, -112, 49, 1, -24, 115, -74, -122, 117, 99, -101, 12, -94, 103, 17, 37, -17, -8, -119, 14, -33, -115, -90, 17, 24, -37, 0, -76, -99, 100, 80, -121, -6, -3, -107, 95, 108, 5, -121, -106, -15, -53, -96, -104, -63, -49, 35, 51, 101, -51, -94, 76, 69, 114, -37, 31, -33 ]
The opinion of the court was delivered by Hopkins, J.: The defendant appeals from a conviction of murder in the first degree. He was charged with the shooting of a woman of ill repute at a house of the same character. The revolting circumstances leading up to and surrounding the tragedy need not be recited. We have examined the record and find the evidence abundant to support the conviction. It is contended by the defendant that the trial court erred in-overruling defendant’s motion to quash the amended information. It appears that, after some additional names had been indorsed on the information, the clerk of the court made a certified copy and because of the additional names, erroneously marked the certified copy an “amended information.” The contention is without merit because no amended information was filed. It is next contended that the defendant was prejudiced by a failure of the officers to properly select the jurors, it being charged that some, whose names appeared on the record, were denied the right to serve on the jury. It appears, however, from the affidavits of the mayor of Leavenworth and various township trustees of the county, and by the county clerk, that the selection of the jury was made in conformity with law and that no qualified juryman was rejected. It appears also that the court, as a matter of safety and protection to the defendant, discharged all jurymen drawn in addition to the original twelve first chosen, and ordered an additional panel. This the court was authorized to do under the provisions of the statute. (R. S. 43-123.) The defendant contends that the court erred in allowing the county attorney undue latitude in his'argument. No record of the arguments appears to have been made, and the record discloses no request of the ■ defendant that the arguments be taken by the reporter. A contention that the defendant should have been discharged because of failure of the state to bring him to trial within three terms of court, after finding of the indictment, is without merit because, of four continuances ordered in the case, one was by the court, one by consent of the parties, and two upon application of the defendant. The record presents no error which would warrant a reversal. The judgment is affirmed.	[ -16, -24, -15, -66, 40, 96, 34, -100, 97, -95, -94, 115, 45, -38, 5, 123, 62, 61, 85, 107, -60, -73, 119, -63, -74, -77, -110, -43, -78, 78, -10, -3, 77, -16, 10, -11, 102, 74, -57, 84, -118, -122, -119, -44, 66, 72, 52, 59, 118, 11, 49, 14, -13, 42, 30, -61, 105, 40, -53, -67, 16, -71, -54, -123, -49, 2, -77, 54, -100, -126, -40, 46, -104, 49, 0, -8, 115, -74, -122, 20, 109, 9, 44, 102, 99, 1, 84, -49, -88, -87, 47, 127, -99, -89, -104, 89, 75, 0, -106, -35, 101, 50, -122, -4, -25, 4, 25, 108, 9, -33, -80, -79, -49, 52, -102, -22, -21, -127, 16, 113, -51, 98, 95, 101, 80, 123, -114, -108 ]
The opinion of the court was delivered by Dawson, J.: This was an action to recover an alleged balance due on the purchase price of six cars of fuel oil, delivered pursuant to a contract wherein plaintiff had agreed to furnish defendant with a year’s supply of four carloads per month. A cross action by defendant for damages for plaintiff’s failure to perform its contract was also involved. Defendant prevailed in its defense to plaintiff’s action and also in its cross action for damages. Plaintiff assigns various errors, which will be noted: As a justification for terminating its contract, plaintiff contended that defendant had failed to send it a remittance for a shipment of oil received on October 22. By the terms of the contract, payment had to be forwarded in thirty days after receipt of shipment. The jury specially found that such remittance had been mailed on November 19, and had been received by plaintiff. It is now contended that such finding lacked support in the evidence. But the record shows that defendant wrote two letters to plaintiff on that date, in one of which a check for the requisite sum was inclosed; that both letters were mailed in the usual course of business, and plaintiff admits having received one of these letters, but not the other, which contained the remittance check. Plaintiff based its denial of the receipt of the letter containing the remittance upon the mere fact that such letter was not found in its files. The jury was justified in attaching no significance to that fact, because another letter of November 15 was also missing from the files, and its receipt was denied by the same witness and for the same reason, yet that letter contained a claim for credit in defendant’s behalf, of which plaintiff could not possibly have been aware otherwise than by receipt of such letter, and which in conformity with such letter had been allowed and entered as a credit in defendant’s favor on the books of the plaintiff company. But the sufficiency of the evidence to show the mailing of the letter of November 19 containing the check is challenged, since neither the president of the defendant company who dictated the letter transmitting the check, nor the bookkeeper in charge of its files and accounts, nor the stenographer who usually carried the defendant’s letters to the post office, had any independent recollection of this specific incident. A carbon copy of the letter of transmittal was introduced, and defendant’s record of accounts of debits and credits with plaintiff was introduced, showing a debit entry for the amount of the check in its serial order between other debit items, and apparently entered at its ostensible date, November 19. The bookkeeper and the president both testified that the letter containing the check was handled as the defendant’s mail was usually handled; that is, it was put “in the general bunch of mail ready to go to the post office.” The president testified: “Q. That is, as far as you know, it was put in a bunch of mail that was in 3>mir office? A. It is the custom in the office to make up the bunch of mail and put it into a box which is kept there for that purpose, and our stenographer usually takes the mail to the post office. . . . “Q. You couldn’t swear absolutely that this letter was mailed, put in the United States post office or some depository for the United States post office? A. I would not say it was not mailed. I might have mailed it myself, but it has been so long ago I couldn’t say positively who did mail it.” It was also shown that on the envelopes used by defendant in all its business correspondence were return instructions, viz.: “Return in five days to the Plainville Mill & Elevator Company, Plainville, Kansas,” and that the envelope bearing the letter of transmittal and the check of November 19 contained the same recital, and the letter and check were never so returned. There is a presumption of fact that a letter which has been duly mailed has been received by the addressee. Of course the fact of affixing postage and mailing must be proved, but those facts may be proved as any controverted issue is proved, and this would permit proof by circumstantial evidence as well as any other evidence; and when the defendant’s usual course of mailing its correspondence was shown and when the letter of transmittal with the check inclosed was shown to have been thus handled in the usual course of business, the affixing of adequate postage was implied (Estes Mills Co. v. Stewart A. Shannon Co., 81 Pa. Sup. Ct. 536), and there was sufficient evidence to justify a jury’s finding that the letter had been received in due course of mail. (Sanders v. Bank Savings Life Ins. Co., ante, p. 120, 233 Pac. 1017.) In 1 Wigmore on Evidence, 2d ed., 329-331, it is said: - “The fixed methods and systematic operation of the government’s postal service have been long conceded to be evidence of the due delivery to the addressee of mail matter placed for that purpose in the custody of the .authorities. ... “The habit of a private person or commercial house, doing systematically a similar service, is equally relevant. . . . “The same application of the principle would admit a private person’s usual course of business to evidence any act of delivery or transmission, such as the sending of a notice, or the placing of letters in the mail box; the only differences are, first, that the fact of the governmental system will be judicially noticed without further evidence (post, § 2575); and secondly, that the course of business of an individual may under the circumstances not appear sufficiently fixed to be of probative value. A consequence of the combination of these two applications of the principle is that, upon proper evidence of the habit of an individual commercial house as to addressing and mailing, the mere execution of a letter in the usual course of business may be. evidence of its subsequent receipt by the addressee.” (See, also, Prudential Trust Co. v. Hayes, 247 Mass. 311; Com’l Trust Co. v. N. E. Macaroni Mfg. Co., 247 Mass. 366.) A minor incidental point in this connection is suggested:' It was not shown that the plaintiff’s street address was written on the envelope. Cases there are which hold that where a letter was addressed to a person or firm in a large city with no given street address there is no presumption that the letter was received by the addressee. (Fleming v. Evans, 9 Kan. App. 858, 61 Pac. 503; Chicago, R. I. & P. Ry. Co. v. Chickasha Nat. Bank, 98 C. C. A. 535, 174 Fed. 935; Trauts Realty Corp. v. Casualty Co. of America, 166 N. Y. Supp. 807.) That Fleming v. Evans, supra, cannot be regarded as authority .on this point will be seen by an analysis of Evans v. Fleming, 62 Kan. 811, 64 Pac. 591, although the latter decision does hot squarely disapprove the doctrine of the defunct court of appeals. But it seems that where the addressee is a well-known business firm in a large city, or a public official, the want of a street address on a letter otherwise properly addressed, stamped and mailed, does not overcome the presumption of delivery. (Covell v. Western Union, 164 Mo. App. 630; Town of Barnet v. Town of Norton, 90 Vt. 544.) While the record does not show that the plaintiff was a well-known business firm in Chicago, it does clearly appear that all the negotiations leading up to -the contract were conducted by correspondence, and much of the extensive correspondence of the parties subsequent to the making of the contract as well, and in a score or more of these letters sent by defendant, and admittedly received by plaintiff in due course of mail, no street address was given. Under such a showing the court holds that there was a presumption of delivery, and the contravening fact that plaintiff denied the receipt of the letter, basing such denial on the mere absence of such letter from its files, was not of such potency as to bar the question of delivery from being submitted to the jury. It is argued by defendant appellee that the evidence tended to show a course of dealing whereby a strict compliance with the contract provision for payment in thirty days was waived, and Capper v. Paper Co., 86 Kan. 355, 121 Pac. 519, and other good authority is cited to support this argument; and appellee also shows rather pointedly that appellant really canceled the contract because of unanticipated advances in the price of fuel oil, and not because of any technical breach of appellee’s duty to pay promptly in thirty days. A further argument is made on defendant appellee’s behalf that there was really nothing due plaintiff on November 19, because of a considerable aggregate of underallowances for freight charges paid by defendant on plaintiff’s behalf, and also because of a claim for damages for delay in shipments which had already accrued at the time of the alleged default on which plaintiff based its alleged right to cancel the contract. But while noting this line of argument on which the judgment might possibly be upheld, it seems altogether sufficient to rest this phase of the case on the sufficiency and competency of the evidence to present a fair jury question as to the delivery of the remittance check of November 19. Error is also assigned on the trial court’s refusal to instruct the jury that the evidence was insufficient to prove delivery of the letter of transmittal and the accompanying check, but this point is disposed of in what has been said above. Fault is also found because the trial court did not explain to the jury the effect of a clause in the contract covering the contingency of strikes, government embargo orders, and the like. The clause read: “All orders, contracts and agreements accepted contingent upon strikes, accidents, delays by carriers or other causes beyond our control. Also subject to any tax, rules, regulations or embargo orders imposed by the U. S. government.” Plaintiff did plead that “any delays in shipments . . . were not due to any fault or neglect of said plaintiff, but were due to causes entirely beyond the control of plaintiff”; but defendant counters with the point that there was no evidence introduced to support this defense, and a careful perusal of the abstracts constrains us to hold that the point is well taken. Another error urged by plaintiff is that the verdict was manifestly a compromise and contrary to the evidence, since the jury only allowed damages for the breach of the contract to furnish defendant’s requisite supply of fuel oil for about four months, until March 1,1920, when, if there was a breach at all, it was on the contract for the whole year’s supply, until September 1, 1920, and defendant’s evidence was to that effect. However, the evidence as to defendant’s damages up to March 1, 1920, was clear, definite and conclusive. On March 1, 1920, defendant changed its engine, and used different kinds of fuel oil and experimented with various oil mixtures, which so complicated the proof and extent of defendant’s damages that the jury simply disallowed all damages after March 1. Conceivably this might have given appellee a basis for complaint, but not appellant. A painstaking study of the abstract and briefs discloses no plain, palpable- error which would permit this cqurt to disturb the judgment. The judgment is affirmed.	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The opinion of the court was delivered by Dawson, J.: This was an action to set aside the probate of the purported will of Susan A. Day, deceased, and to cancel it. For some time prior to her death at an advanced age, Susan A. Day lived alone on a farm in Miami county. She was a woman of some means. She had been the mother of three children, Etta, Harlan and Stella. Etta married a man by the name of Rose, by whom she had three children, John, Alton and Victor. Stella married a man by the name of Rowe and died leaving two children surviving her, Edith Rowe Weiehold, and Frank Rowe alias Edwin Genthe. These two children of Stella were minors when this action was begun. The purported will of Susan A. Day devised 240 acres of land to her daughter Etta Rose; a life estate' in 160 acres to her son Harlan Day, with remainder over to Etta if she survived him, otherwise to her children then living; and all the residue of Susan’s estate to Etta and Harlan in equal shares, subject to the following items: “Second. I give and bequeath to my granddaughter, Edith Rowe, the sum of SI. “Third. I give and bequeath to my grandson, Frank Rowe, the sum of SI.” The will bore the date of May 10, 1919, and Susan A. Day died two days later. Through the initiative of Etta Rose the will was admitted to probate, and both Etta and Harlan received and accepted certain portions of the estate pursuant to the will. On May 5, 1921, Edith Rowe Weiehold, a minor, commenced this action by her guardian and next friend, William Weiehold, alleging that she and her brother Frank were grandchildren of Susan A. Day and the sole surviving heirs of their mother, Stella Rowe, and that they and Etta Rose and Harlan Day were all and exclusively the heirs of Susan A. Day. Plaintiff set up the illegality of the will in various particulars, and prayed that the order of the court probating the will be set aside, that it be adjudged that the instrument in controversy was not the will of Susan, that Susan died intestate, and that the property be divided as the law directs, and that Etta and Harlan be required to account for what they owed or had received from the estate of Susan. Issues were joined between all the parties interested. The trial court heard the evidence, made findings of fact and conclusions of law, and gave judgment for plaintiff substantially as prayed for. One of the findings reads: “1. Susan A. Day died the early morning of May 12, 1919, leaving as her sole heirs Mrs. Etta Rose, Harlan Day, Edith Rowe Weiehold, and Frank Rowe; the last two being children of a deceased daughter.” The executor and Etta Rose and her children appeal. Their main attack on the judgment is that there is no evidence to support the trial court’s finding that the plaintiff Edith Rowe Weiehold and the defendant Frank Rowe are heirs of Susan A. Day or children of her deceased daughter. In the oral argument before this court it was asserted on behalf of the appellees that this question was never a matter of genuine dispute in the trial court. The record rather persuasively indicates that this contention is correct, but as this court has studiously perused the abstract, counter abstract and supplemental abstract, as well as the briefs, we perceive no difficulty in determining the merits of appellants’ main contention without passing on the point raised by appellees. Touching the relationship of plaintiff Edith Rowe Weichold and Frank Rowe to Susan A. Day, deceased, the record shows that the plaintiff’s petition sufficiently alleged that they were the grandchildren of Susan, through the lineage of their dead mother, Stella Rowe, Susan’s daughter. Etta Rose’s answer admitted that she and Harlan, “and Stella Rowe, now deceased, were and are the only children of Susan A. Day, deceased.” Etta’s answer further recited: “Defendant, further answering, admits that by the terms of said will of the said Susan A. Day, deceased, that the plaintiff Edith Rowe was given the sum of SI and the defendant Frank Rowe was given the sum of SI.” The answer of McConnell, executor, admits “that the heirs of Susan A. Day, deceased, were the persons set out in plaintiff’s petition.” The answer of John, Alton and Victor Rose, minor children of Etta, by their guardian ad litem, admits “that Stella Rowe, deceased, was a daughter of the said Susan A. Day, deceased.” It also fairly appeared that Stella Rowe died while her children, Edith and Frank, were very young, and that Edith was reared by a man named Weichold, in Marion county, and Frank was reared by a family of the name of Genthe, in Houston, Tex. Eva Day deposed: “Q. Do you know who Edith Rowe Weichold and Frank Rowe are and what relation they bear to Susan A. Day? A. They are her grandchildren.” Harlan Day testified: “A. I have a dead sister. “Q. What was your dead sister’s name? A. Stella Day Rowe. “Q. When did she die? A. I could not tell you just the date. It was several years ago. . . . “Q. How many children had Mrs. Rowe, your sister? A. Two. “Q. What are their names? A. Frankie and Edith.. “Q. And this is Edith that is here? A. Yes. “Q. And Frankie resides where? A. In Houston, Tex., I believe it is. “Q. And those two children are the only children of Stella? A. Yes, sir.” McConnell, the executor, who had “typed” the will from a copy furnished by Etta, was asked this question: “Q. Did she [Etta Rose] make any suggestion whatever to you at any time during the time you were making the will, with reference to the will?” The witness answered: “A. There was a question in my mind as to the proper way of spelling the names of these Rowe children — their given names. I consulted Mrs. Rose in that respect to know that I had their names properly spelled. I didn’t know the children; didn’t know the existence of. such children until that time as to know what their given names were.” From the foregoing it will be seen that the relationship of plaintiff and her brother to Susan A. Day, through their mother, Stella, was in part admitted by the pleadings of the adverse parties, and there was ample evidence to supply such links in the chain of facts to prove that relationship on all essential matters not conceded. It follows that appellants’ main contention in this appeal cannot be sustained. Another point raised by appellants has reference to the fact that defendant Harlan Day joined in the proceeding to probate the will in May or June, 1919, and that he received and accepted benefits under the will, and that by such participation in the probate of the will, and by the lapse of more than three years since such probate before he filed any pleading in this action, as well as by his acceptance of benefits under the will, he is barred and estopped from maintaining an action to set aside the will or from otherwise assailing it. This contention is partly correct, but not the conse-' quences which appellants would deduce therefrom. While Harlan Day could not maintain this action (assuming all the premises urged by appellants), once the bars are taken down for the adjudication of the property rights of other litigants, or where there is no bar as to other litigants, and the adjudication would or might affect the rights of Harlan Day, he could not be excluded from participating in this action. And, moreover, neither equity nor good conscience required him in this lawsuit to persist in any prior inequitable attitude he may heretofore have taken, knowingly or unwittingly, against the interests of his dead sister’s children through his former participation or acquiescence in the probate of the will. This court has held that where an action to set aside a will is properly brought by a bona fide litigant who is not barred by the statute of limitations from maintaining it, such action inures to the benefit of all others concerned who intervene in the action, although they themselves would be barred by the statute from instituting it. (Maurer v. Miller, 77 Kan. 92, and citations, 93 Pac. 596; 28 R. C. L. 394.) In Rockwell v. Junction City, 92 Kan. 513, 516, 141 Pac. 299, the principle involved in Maurer v. Miller was discussed by the chief justice: “Maurer v. Miller, 77 Kan. 92, 93 Pac. 596, 15 A. & E. Ann. Cas. 663, is cited as an authority sustaining the claim that the bringing of the action by Rockwell inured to the benefit of the subsequent intervenors. That was.an action to contest a will; a proceeding in rem which affected the interests of all the parties who had an interest in it. That was a case where there was community or privity of interest between the intervenor and the other parties, as the will was an indivisible thing and the judgment on the contest either established it as a whole or wholly set it aside. In a case note in 15 A. & E. Ann. Cas. 664, many cases are cited to the effect that if an action is begun before the statute of limitations has run it will inure to the benefit of persons who intervene after the time when an action would be barred, providing there is a community of interest or privity of estate existing between the intervenor and the other plaintiffs.” In Powell v. Koehler, 52 Ohio St. 103, 49 A. S. R. 705, 26 L. R. A. 480, the action was to contest a will. Plaintiff had been a minor and under other disability when the will was probated. Other persons who would profit by the success of her action were barred by the statute of limitations from attacking the will. While the plaintiff was defeated on another ground, it was held that so long as the right of action was saved to any one plaintiff, the action brought by her inured to the advantage of all persons interested with her in the estate, for the will, being an entirety, was wholly inoperative when set aside at the suit of any party, and the estate would then have to be divided and distributed under the law. It is the law, of course, that a person who, without his fault and in ignorance of facts affecting the validity of a will, has accepted benefits under it has to return those benefits or offer to account therefor before he can take the initiative to set aside the will. (Medill v. Snyder, 61 Kan. 15, 58 Pac. 962; Dreisbach v. Spring, 93 Kan. 240, 144 Pac. 195; Note in 130 A. S. R. 186, 212 et seq.) But here Harlan Day made no difficulty about that matter, and the judgment properly took care of that feature of the action. The record and files of this case present some minor questions of appellate procedure, but as there is no substantial error in tlie judgment which would justify or compel its reversal or modification, they need not be decided. The judgment is affirmed.	[ -11, 108, -4, -84, 42, -32, 10, -104, 83, -63, -79, 83, -21, -43, 68, 97, 123, 13, 81, 107, -58, -77, 23, 0, -46, -13, -77, -43, -93, 72, -90, 95, 76, 34, 74, 93, -30, -114, -63, 80, -108, 88, 105, -23, -55, -12, 54, 47, 118, 77, 117, -114, -73, 42, 60, 118, 40, 46, 107, 41, 8, -96, -114, -113, 79, 50, -80, -26, -102, -93, 72, 40, -112, 113, -119, -16, 115, -90, -122, 116, 39, -103, 12, 98, 103, 1, -19, -17, -72, -120, 14, 118, -99, -89, -102, 89, -14, 76, -68, -99, 105, -48, 15, -16, -18, 23, 92, 108, 76, -117, -42, -79, -113, 58, -104, -121, -29, 37, 51, 113, -55, 32, 77, 66, 113, -101, -49, 126 ]
The opinion of the court was delivered by Harvey, J.: These three cases involve construction of the zoning ordinance of the city of Wichita. Though differing from each other in detail, they were tried together in the court below and they are submitted together in this court. The trial court made findings of fact and conclusions of law and held many of th°e provisions of the ordinance to be invalid. Proceeding under authority conferred by statute and the general welfare and police power of the city, the board of commissioners of the city of Wichita passed what is known as a zoning ordinance. This divided the territory of the city into five use districts, and designated the uses that might be made of property in the respective districts. These districts are known as “A,” residence district; “B,” residence district; “C,” commercial district; “D,” light industrial district; and “E,” heavy industrial district. It is provided that in the “A” residence district no building or premises shall be used and no building shall be hereafter erected or altered, unless otherwise provided in the ordinance, except for one or more of the following uses: One-family dwelling, two-family dwelling, churches and temples, libraries, farming and truck gardening, schools and colleges, and accessory buildings which are defined. In the “B” residence district no building or premises shall be used and no building shall be hereafter erected or altered, unless otherwise provided in the ordinance except for one or more of the following uses: any use permitted in the “A” residence district, apartment houses, group houses, row houses, hotels, private clubs and fraternity houses, boarding and lodging houses, boat houses, hospitals, nurseries and greenhouses, institutions of philanthropic or eleemosynary nature, or accessory buildings as defined. The ordinance also provided area districts. In the West case the plaintiff was the owner of certain lots, 50 by 131 feet, situated in the “A” residence district. He made application to defendant for a building permit to erect thereon a six-family apartment house. This was refused for the reason that the zoning ordinance prohibited the erection of apartment houses in the “A" residence district, and this is a mandamus suit to compel the issuance of that permit. In this proceeding plaintiff seeks to have determined the validity of various sections of the ordinance. In the case of Ware v. City of Wichita, 113 Kan. 153, 214 Pac. 451, the validity of the ordinance was in question and it was there held to be valid. The court further held in that case that a store building could not be erected in the territory comprised in the- “A” residence district as defined by the ordinance. The only respect in which this case differs from the Ware case is that plaintiff in this case seeks to erect an apartment house, while the plaintiff in the Ware case wanted to erect a. store building. When once the power to zone and to restrict uses of property in designated zones is recognized (and that is settled in this state by the Ware case), then the particular classification for use made by the ordinance ought not to be set aside without substantial reason, specifically applicable thereto. It will be noted that the ordinance designates “B” residence district (and all parts of the city except “A” residence district) as territory in which may be erected apartment houses, group houses, row houses, hotels, private clubs and fraternity houses, boarding and lodging houses. This seems to be the natural place to group apartment houses rather than in a district limited to one-family or two-family dwellings. The Weigand case is brought under the declaratory-judgment law to test the validity of all of the provisions of the ordinance. The plaintiff is the owner of several lots and blocks of lots located in different parts of the city, some in one district and some in another, as defined by the zoning ordinance. He had made no application for building permit to erect any kind of a structure upon any of his lots. His complaint is that many of the provisions of the ordinance might interfere with uses which he might desire to make of his property or prevent a sale of the property to some one who desired to make a specific use of it. In so far as the authority of the city to. pass a zoning ordinance making restrictions upon the use. of property in certain designated districts, that question is not open to controversy. It was settled by the decision of this court in Ware v. City of Wichita, supra. The declaratory-judgment law is available only “in cases of actual controversy.” (R. S. 60-3127.) The zoning ordinance may be unreasonable when applied to a specific use which an owner desires to make of specific property, but until such a situation is presented there is no actual controversy between the owner of property and the city concerning the zoning ordinance. The owner is. not entitled to litigate under this statute questions which may never affect him to his disadvantage. To speculate upon possible uses tíiat the owner or his vendee might desire to make of the property, and seek a judgment determining them is simply to ask the opinion of the court with reference to a situation that may never arise. In the Ware case the plaintiff owns a lot situated in “B” residence district upon which there is now located a brick building used as a grocery store, which was erected and in use at the time the zoning ordinance was passed. He applied for a permit to extend and enlarge this building, the extension to be used for the same purpose. This was refused for the reason that the zoning ordinance did not permit the building or enlargement of store buildings in this district. He also sought by declaratory judgment to have other provisions of the ordinance with respect to other uses he might desire to make of the unoccupied portion of his lot declared invalid. As to the mandamus portion of his action the trial court held against the plaintiff, following the decision of this court in Ware v. City of Wichita, supra. As to.the declaratory-judgment feature of the case, the court held invalid certain provisions of the ordinance. As to those there was no actual controversy because there was no specific contemplated use the plaintiff then sought to make of his property. In deciding the case the court construed section R. S. 13-1106, which reads as follows: “That any ordinance or regulation provided for or authorized by this act shall be reasonable, and any taxpayer or any other person having an interest in property affected, may have the reasonableness of any ordinance or regulation determined by bringing an action, in the district court of the county in which such city is situated, against the governing body of said city,” and held that this statute, as far as it relates to the reasonableness of specific provisions of zoning ordinances, abrogates the general rule that ordinances of the city are presumed to be reasonable, and before a court should hold otherwise their unreasonableness should be established by clear and positive evidence, and has the effect of placing the person having an interest in the property affected upon an equal standing with the city upon the question of the reasonableness of the provisions in question of the ordinance. We construe this section of the statute as giving to any taxpayer or any other person having an interest in property affected a right to bring a suit in the district court to test the reasonableness of the ordinance or any specific provisions thereof which affects his particular property in the use he desires to make of it; that is, the suit does not have to be brought by the state on the relation of the county attorney or attorney-general^ and the forum in which to bring the suit is made definite, but it may be doubted whether it in any way affects' the question of the burden of proof. In any event, the person bringing such action is a plaintiff and has the ordinary burden of establishing his cause of action by preponderance of the evidence. Before a court should set aside a specific provision of the ordinance, it should be made to appear affirmatively that it is unreasonable when applied to plaintiff’s property and the specific use which plaintiff desires to make of it. Disposing of the cases upon the- conclusions reached: The West case, No. 25,660, will be reversed with directions to enter judgment for defendant; the Weigand case, No. 25,661, will be reversed with directions to enter judgment for defendant; and the Ware case, No. 25,662, will be affirmed in so far as it denied the writ of mandamus sought by plaintiff, and reversed in so far as it declared specific provisions of the ordinance invalid', with directions to enter judgment for defendant.	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The opinion of the court was delivered by ALLEGRUCCI, J.: This is an interlocutory appeal by the State pursuant to K.S.A. 22-3603 in two separate criminal actions from the orders of the district court suppressing evidence. The two cases were consolidated into one appeal. In case No. 93CR333CH, the district court suppressed evidence seized from Reno’s residence in the execution of a search warrant. In case No. 93CR385CH, the district court suppressed evidence found on the ground near where Reno was stopped by a police officer while walking on a public street. The appeal was transferred from the Court of Appeals by order of this court pursuant to K.S.A. 20-3018(c). The relevant facts are not in dispute in either case. Seizure of Contraband from Dwelling. In August .1993, an execution was issued in the District Court of Douglas County, Kansas, which recited that Betsy Reno had obtained a judgment against Roger Reno for more than $9,000 and that the judgment had not been paid. The Sheriff of Neosho County was “commanded that of the goods and chattels of said Roger K. Reno, you cause the money above specified to be made and that more specifically a list of non-exempt property of Roger K. Reno includes the following (see attachment A) all located at 911 S. Garfield, Chanute, Kansas.” Attachment A lists the following: .357 Magnum pistol .22-caliber pistol 20-gauge shotgun Deer rifle with scopé 2 antique squirrel guns 15-foot camper Motorcycle. The following account of events leading up to seizure of evidence from Reno’s residence was given by Janice Jay: On September 9, 1993, Janice Jay, who is employed by the Neosho County Sheriffs Department as a process server, was directed to serve the execution papers on Reno. When she went to Reno’s residence for the purpose of seizing the property listed in Attachment A, she was accompanied by another sheriff’s deputy, Vicky Wright, and two officers from the Chanute Police Department, Don Umbarger and John Rausch. Jay knocked on the door of Reno’s house. There was no answer. A man known to the police officers, James McCoy, came out of the camping trailer parked in the driveway. McCoy left after telling the officers that he thought Reno would be back shortly. The camping trailer was one of the items to be seized. While looking it over to determine how to move it, the officers saw a set of keys hanging in the door of the camping trailer. Deputy Jay used the radio in her car to get instructions from her supervisor, Undersheriff Roy Smith. On Smith’s advice, the officers unlocked the residence with one of the keys. Officer Rausch stayed outside to watch for Reno. The others went in. Deputy Wright found “a white powdery substance on a tray sitting on the dresser” in the bedroom. The officers all went back outside, and Deputy Jay again radioed Undersheriff Smith. She told him that they had found “numerous guns lying around on the floor on the furniture, seemingly just in the open,” and that they had found what they believed to be drugs. According to Deputy Jay, “the undersheriff obtained two search warrants to the house and the garage, and he came back to the property where we carried out the search warrants.” Undersheriff Smith testified that when Deputy Jay radioed the second time, she said he was needed at Reno’s residence where they had found guns and drugs. Smith went to the house. Inside, one of the deputies showed him marijuana seeds and a bottle of white powder in the kitchen and a piece of glass with white powder on it in the bedroom. Smith testified that these items were “in plain view.” Using the information gained from entering the house, the undersheriff applied for a search warrant of the residence to search for illegal substances. Smith’s affidavit and application for the search warrant stated that the crimes of possession of cocaine, marijuana, and drug paraphernalia had been committed. Smith swore that the warrant would be used to search for "illegal substances, contraband or any other fruits or instrumentalities of above noted crimes.” The application was based on the following facts: “On September 9, 1993, at approximately 2:45 pm, Process Server, Janice Jay with the Neosho County Sheriff’s Department was serving execution papers on an individual by the name of Roger Reno, who lives at above stated address. Along with Janice Jay was Vicky Wright and Roy Smith with the Sheriff’s department and Don Umbarger and John Rausch with the Chanute Police Department. While looking for items listed on the execution papers, this affiant, Roy Smith, with the Sheriff’s Department, noticed in the bedroom a substance which he believed to be cocaine on a piece of glass along with a razor blade next to it. In the kitchen, this affiant further noticed a clear plastic bottle with white powder substance which this affiant believed to be cocaine and a shot glass full of seeds, which this affiant believes to be marijuana seeds. All such items were in plain view. At this time the search of the house was stopped in order that a search warrant could be executed. “Whereupon, this affiant requests that a search warrant be issued to search the residence at 911 S. Garfield for illegal substances, contraband or any other fruits or instrumentalities of above noted crimes.” There is no mention of Reno’s absence, his locked residence, or the officers’ use of a key found in the camping trailer to gain access to the house. Defense counsel moved to suppress the evidence seized in the search of Reno’s residence. In the following words, the district court granted Reno’s motion: “I could find and the State provided no authority for the proposition that an execution provided the sheriff’s department with sufficient authority to enter a locked premises. In reviewing the language of the execution itself, there’s no specific language which would allow the State to enter the locked premises, and, in fact, the affidavit upon which they obtained the search warrant does not mention that the premises was locked or that the resident was not home. Consequently, I find that the sheriff’s department in this case was there without authority, that it was a violation of the defendant’s Fourth Amendment right, and that the evidence should be suppressed.” Stop and frisk. On October 12, 1993, Officer Mike Benard of the Chanute Police Department was on duty at approximately 2:24 a.m. While on routine patrol he saw two men “walking down the street carrying what appeared to be beverage containers in their hands.” Benard stopped his patrol car beside the men and asked them to stop. They continued walking, and Benard again asked them to stop. The man later identified as Reno “picked up his pace.” Running after Reno, Officer Benard saw him step around a bush near the curb and throw something. Benard saw an object fly through the air and heard something strike a parked car. Then Benard asked Reno and the other man to go back to the patrol car with him. After another officer arrived at the scene, Benard looked for the object which Reno had thrown. On the ground “directly beside” a parked car, Benard found a small vial containing white powder. Reno denied any connection with the vial. With regard to Reno’s identification, Benard testified: “At this point I had no idea who Mr. Reno was. I had asked for [I.D.’s] for both the individuals and given them to Sergeant Aikins, and I went to the car and came back. I had known just prior to this incident that Mr. Reno had been on television for Kansas’ most wanted and what have you. So after Sergeant Aikins asked me if I knew who was standing there, I then realized who it was . . . .” Once Benard identified Reno, he asked him if he had any weapons. Reno answered that “he didn’t have anything on his person at all.” Then Benard asked each man to place his hands on the patrol car for a pat-down. Benard found a knife in Reno’s front pants pocket and a ballpoint pen casing in another pants pocket. He was arrested and charged with possession of cocaine and possession of drug paraphernalia, an “ink pen made into a straw.” - When asked by defense counsel, “[W]hat reasonable suspicion did you have that they were violating . . . the law?”, Officer Benard testified that he “had reason to believe that they were walking down the street with open containers.” Chanute City Code § 5.16.130 (1996 Supp.) makes it unlawful for any person on a public street to have in his possession an open container of alcoholic liquor. Benard testified that he could see that Reno had in his left hand a bottle in which there was brown liquid sloshing around and a large C-Mart thermal cup in the other hand. Benard conceded that he could not tell if the liquid was root beer or whiskey. The other man had a bottle in a brown paper bag. Officer Benard also testified that “[ajnyüme I have anybody walking down the street at 2:30 in the morning in a residential neighborhood I’m going to stop and [I.D.] them.” He agreed that this practice was “standard procedure,” the policy followed by the late night shift. Asked whether that policy was the reason he stopped the two men, Benard answered, “That associated with the fact that they were carrying what appeared to be alcoholic beverages in their hands.” The district court found that Officer Benard “was unable to articulate a reasonable suspicion of a violation of the law giving him probable cause to stop and make further inquiry. Consequently, anything that flowed from this illegal stop or this stop in violation of the defendant’s rights should be suppressed, and that would be, as I understand it, the Bic pen and the vial.” We first consider the admissibility of the evidence during the search of defendant’s residence. Although the parties suggest standards of review which center on the trial court’s findings, this is not a case where there is any real dispute about the facts material to the decision. The question whether the evidence was properly suppressed is a question of law. Our review on questions of law is unlimited. See State v. Vandiver, 257 Kan. 53, 56, 891 P.2d 350 (1995). The State’s first argument is that the evidence is admissible under the plain view doctrine. To this, Reno responds that the plain view doctrine has no application because the initial entry into his residence was unlawful. We agree. In State ex rel. Love v. One 1967 Chevrolet, 247 Kan. 469, 476, 799 P.2d 1043 (1990), the court made the following general observations about the plain view doctrine: “Warrantless searches, subject to a few exceptions, are per se unreasonable. State v. Galloway, 232 Kan. 87, 89, 652 P.2d 673 (1982), cert. denied 475 U.S. 1052 (1986). We have adopted the plain view exception set forth in Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, reh. denied 404 U.S. 874 (1971). State v. Galloway, 232 Kan. at 87. Under Galloway, three basic requirements must be met before the plain view exception is applicable: (1) The initial intrusion which afforded authorities the plain view must be lawful', (2) the discovery of the evidence must be inadvertent; and (3) the incriminating character of the article must be immediately apparent to the searching authorities. 232 Kan. at 91. “The inadvertence requirement of Galloway is not at issue in the instant action. We note, however, that the United States Supreme Court has recently eliminated inadvertence as a plain view exception requirement. Horton v. California, 495 U.S. [128], 110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990).” (Emphasis added.) With regard to the lawful intrusion requirement, the court stated: “ ‘Plain view’ provides grounds for seizure of an item when an officer’s access to an object has some prior justification under the Fourth Amendment. Texas v. Brown, 460 U.S. 730, 738, 75 L. Ed. 2d 502, 103 S. Ct. 1535 (1983). See Horton, 110 L. Ed. 2d at 123. Plain view is not necessarily an independent exception to the Fourth Amendment, but an extension of whatever the prior justification for an officer’s access to the object may be. Brown, 460 U.S. at 738-39.” 247 Kan. at 476-77. In State v. Galloway, 232 Kan. 87, 94, 652 P.2d 673 (1982), the court considered the argument that “ ‘exigent circumstances’ [must] always be present before the plain view exception is applicable.” The argument was rejected in favor of “the better view,” which “is that die ‘exigent circumstance’ requirement applies only where the searching authority uses plain view as justification for the intrusion.” 232 Kan. at 94. Thus, the three-pronged test, trimmed to two prongs in Horton, was established. In the present case, no argument has been made that the incriminating character of the articles was not immediately apparent to the officers. The only question, therefore, is whether the initial intrusion which afforded authorities the plain view was lawful. For Kansas authority for the intrusion, the State cites K.S.A. 60-2401. It provides, in part: “(a) Definitions. A general execution is a direction to an officer to seize any nonexempt property of a judgment debtor and cause it to be sold in satisfaction of the judgment. A special execution or order of sale is a direction to an officer to effect some action with regard to specified property as the court determines necessary in adjudicating the rights of parties to an action. Notwithstanding the provisions of K.S.A. 60-706, and amendments thereto, executions served under this section shall be by personal service and not by certified mail return receipt requested. If personal service cannot be obtained, other forms of service of process are hereby authorized. “(b) Bij whom, issued. Executions and orders of sale shall be issued by the clerk at the request of any interested person and directed to the appropriate officers of the counties where they are to be levied. “(d) Manner of levy. Except as provided in subsection (a), a general execution shall be levied upon any real or personal nonexempt property of the judgment debtor in the manner provided for the service and execution of orders of attachment under K.S.A. 60-706 through 60-710, and amendments thereto. Oil and gas leaseholds, for the purposes of this article, shall be treated as real property. Special executions or orders of sale shall be levied and executed as the court determines.” The State characterizes the execution in this case as a special execution. Without actually saying so, Reno seems to assume that the execution is a general execution. The writ in question may be something of a hybrid in that it has some earmarks of both general and special executions, but the special execution indicators certainly predominate. The only significance would be in the different man ners of levy set out in K.S.A. 60-2401(d) for general and special executions if entiy without consent into a locked residence were authorized for one but not the other. The parties agree, however, that there is no express prohibition or authorization for the action. The State seems to be contending that, in the absence of authority limiting the force which can be used to gain possession of specified personal property, reasonableness is the test. Here, according to the State, it was reasonable to use the keys found in the trailer to unlock the door to the residence and enter. We do not agree. Case law authority in this area is fairly scarce and tends to be quite antiquated. In these circumstances, the State has resorted to citing the legal encyclopedias for rules governing the manner of levy. The following generalizations are drawn from 30 Am. Jur. 2d, Executions, Etc. § 259: “The courts differ as to what constitutes a forcible entiy or breaking of an outer door or window, within the rule prohibiting forcible entiy for the purpose of making a levy of execution in the debtor’s dwelling. To constitute a forcible entiy or breaking, it appears that it is not necessary that the door or window, or the locks or fastenings of either, be actually broken or destroyed. Thus, it has been stated that the mere raising of an outer window constitutes forcible entiy, as does the entry through an open window, if that is not shown to be a usual place of entry. On the other hand, it has been held that the officer is permitted to open the outer door in the ordinary or usual manner, as by lifting the latch, turning the knob, sliding back the bolt where the door is left unlocked, or turning a key left in the lock. “There is also authority to the effect that an officer may not force his way into a dwelling house to levy a writ of execution where the door is only partly dosed, if there are persons within resisting his entrance. This holding is based on the principle that if an officer cannot enter peacefully before the door is shut, he ought not to attempt to enter, since such an attempt unavoidably endangers a breach of the peace and is as much a violation of the owner’s right as if he had broken the door in the first instance.” Of these rules, the State particularly relies on the one which would permit an officer to turn a key left in the lock. The wording differs somewhat in the case cited, Cate v. Schaum, 51 Md. 299, 307 (1878), and obviously dilutes its benefit to the State’s argument: “[N]either the landlord nor his bailiff, in order to make distress of the tenant’s goods, can lawfully break open gates, or break down inclosures, or force open the outer door of any dwelling house or other building, or enter by a window which is found shut though not fastened; but it seems the landlord or his bailiff may open the outer door by the usual means adopted by persons having access to the building, and therefore he may open it by turning the key, by lifting the latch, or by drawing back the bolt. [Citations omitted.]” (Emphasis added.) Only one case has been located which involves use of a key to unlock the door of the absent judgment debtor s residence. People v. Sylva, 143 Cal. 62, 76 Pac. 814 (1904), is an appeal from a conviction for assault. Sylva’s threshold defense was that the victim, Pistolesi, was a trespasser on defendant’s premises so that he had the right to use all the force necessary to expel the intruder. The California court concluded that the defense was ineffective because Pistolesi was not a trespasser. Here are the circumstances which were considered by that court: “[T]he sheriff had an execution against the defendant under which he had previously levied upon some books of the defendant, which, by agreement, had been thereupon left in defendant’s house pending further proceedings; that Pistolesi was the attorney for the execution plaintiff, and that at the time in question he was on the premises with the deputy sheriff, and at his request, to assist him in getting the books away; that when they reached the house the defendant was not at home, and they got from a small boy on the premises a key, with which they unlocked the door and so entered, and were standing in the entry with the door open at the time the defendant returned to his home and made the alleged assault. Under these circumstances Pistolesi was not a trespasser. The levy was good as against the defendant, though not sufficient against creditors and purchasers in good faith. [Citations omitted.] An officer charged with the duty of enforcing a judgment by execution has the right to enter the premises of the execution defendant, if he can do so peaceably. (11 Am. & Eng. Ency. of Law, 2d ed., 654.) He has also the right to take with him such persons as he may need to assist him in the duty. The defendant had no right to expel the officer or his assistant from the premises.” 143 Cal. at 63. Although at first glance Sylva seems to bear a remarkable similarity to the present case so that it might provide guidance for disposition of this appeal, there are several factors which distinguish it. First, the appeal was decided on grounds other than the lawfulness of Pistolesi’s entry into Sylva’s residence. 143 Cal. at 63-66. Second, facts material to Sylva’s expectation with regard to entry, which might distinguish Sylva from the present case, are not ascertainable. The previous levy, the boy’s having the key, and Syl va’s singling out Pistolesi are circumstances in Sylva which may suggest that the officer’s entry was anticipated (even made possible) by Sylva, but that Pistolesi’s entry was not. Third, the California court’s construction of “peaceably,” 143 Cal. at 63, is somewhat incompatible with modem decisions involving self-help repossession in commercial transactions. Even though the entry into Sylva’s premises was punctuated by a threatened shooting, the court deemed it to have been done peaceably. In this interpretation, method of entry seems to be the sole consideration. In contrast, the focus of modem commercial litigation seems to be on potential for confrontation or incident so that a property seizure marred by an incident or altercation would not be deemed to be peaceable. There is a difference, of course, between a levy of execution by an authorized officer and self-help repossession by the creditor which may account for the different emphases. Commercial law is the one area in which there is a significant amount of current litigation involving the definitions of peaceable, peaceful, or breach of the peace. This court addressed the question of what constitutes a breach of the peace in Benschoter v. First National Bank of Lawrence, 218 Kan. 144, 542 P.2d 1042 (1975). Benschoter signed a promissory note and security agreement secured by fárm equipment. When Benschoter failed to make a scheduled payment, die creditor went to the debtor’s house. “Both the appellant and his wife were away from the home but their three children, ages seventeen, fifteen and thirteen were home. Mr. Kuhn went to the door of the appellant’s house and asked the children to let him pick up the secured farm equipment. The hay conditioner was in the driveway in front of the bam. The cadet mower was in the bam. The appellant’s seventeen-year-old son opened a padlocked gate protecting the equipment and helped them get the mower from the bam.” 218 Kan. at 146. In his challenge to the repossession, Benschoter argued that the property was taken by “stealth,” by which he meant taken in his absence and arguably when the creditor knew he would be absent, thus committing a breach of the peace in violation of K.S.A. 84-9-503. See 218 Kan. at 152. The statute provides, in part: “Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.” The Kansas Comment 1983 to this section states, in part: “Nothing in this section or elsewhere in Article 9 defines the term ‘breach of the peace.’ The courts are left with that job. The leading Kansas case is Benschoter v. First Nat’l Bank of Lawrence, supra, where the court held that ‘stealth’ does not constitute a breach of the peace. On the other hand, there are cases holding that a secured creditor accompanied by the sheriff, leaving the impression that a court order has been issued when in fact it hasn’t, is a breach of the peace because of the misrepresentation which is created. Stone Mach. Co. v. Kessler, 463 P.2d 651 (Wash. App. 1970). Forced entry into the debtor’s premises would almost certainly be considered a breach of the peace, and the UCCC expressly so provides for consumer repossessions. K.S.A. 16a-5-112.” K.S.A. 16a-5-112 provides: “Upon default by a consumer, unless the consumer voluntarily surrenders possession of the collateral to the creditor, the creditor may take possession of the collateral without judicial process only if possession can- be taken without entry into a dwelling and without the use of force or other breach of the peace.” The Kansas Comment 1995 to this section states, in part: “Under the UCC, a secured creditor has the right to take possession of collateral without resorting to legal process if it can be done without a ‘breach of the peace.’ K.S.A. 84-9-503. This term is generally left to case law definition, but it raises delicate problems when it comes to repossessing furniture or other property that is within a home or apartment. The disputes that result from such a situation are rarely the type that get to the appellate courts for resolution. It is necessary, therefore, to' make it clear that dwellings cannot be entered absent the consent of the occupants except under the supervision of the court.” It is worth noting that Restatement (Second) of Torts § 208 (1963) deals with entry to execute civil process against the occupant: “(1) The privilege to execute civil process pursuant to a writ which is either valid or fair on its face, carries with it the privilege to enter land in the possession of another for the purpose of executing such process against the person, land, or goods of the possessor or an occupant of the land. “(2) The actor is not privileged to break and enter a dwelling in order to execute such process, unless he has already peaceably and without fraud entered the dwelling and has been forcibly ejected before completion of the execution of the process.” Comment e directs the reader to Comment b under Restatement (Second) of Torts § 206 (1963) for the following definition of “break”: “The word ‘break’ is here used in the same sense in which it is used in defining the crime of burglary, and includes the breaking or destruction of any portion of the outer part of a building or enclosure used for its protection or the change in location of any such part, such as the moving or pushing aside of any object placed there as a barrier.” The appendices to the Restatement (Second) of Torts after 1963 contain no cases citing §208. Finally, we note that in the criminal law context, this court applies a heightened standard for reasonableness when entry into a suspect’s residence is involved. In State v. Flatten, 225 Kan. 764, 594 P.2d 201 (1979), the defendant was arrested without a warrant within the privacy of his home. This court affirmed the district court’s order suppressing evidence seized within the house pursuant to the arrest. The court stated: “The Fourth Amendment protects a citizen’s reasonable expectations of privacy and one’s reasonable expectation of privacy in the home is entitled to unique sensitivity. United States v. Martinez-Fuerte, 428 U.S. 543, 561, 565, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976); Katz v. United States, 389 U.S. 347 [,19 L. Ed. 2d 576, 88 S. Ct. 507 (1967)].” 225 Kan. at 769. This expectation of privacy in one’s home is no less uniquely sensitive in a civil context, nor is the entry by a law enforcement officer less intrusive because the officer is serving a writ of execution. Although there is a certain emphasis on the distinction between self-help repossession and legal process in our statutes and Comments, there is no indication that “peaceable” is not a requirement of both. This is particularly true here where the writ of execution is issued by the clerk and not by the court. Further, because the major distinction is in the inapplicability of constitutional protections to self-help repossession, the “peaceable” requirement for the levy of a writ of execution by a law enforcement officer should be stricter than for self-help repossession by a private citizen. The debtor’s expectation of privacy in a dwelling is the primary consideration in determining the lawfulness of an entry. The standard for entry into a dwelling is justifiably higher than for entiy into any other structure because of the higher expectation of privacy in one’s dwelling. Clearly, a locked dwelling door is to be treated as if it had been locked for the purpose of preventing entry. In this case, the door to Reno’s house was locked. Entry into the dwelling was thereby prevented. Entry was gained by the officer levying the execution and the officers accompanying her due to the happenstance that a key to the front door was found in the camping trailer parked on the lot. The key was on a ring with other keys, and its match to the front door lock was not immediately apparent. Although the availability of the key compromised the security of the dwelling, it does not demonstrate any significant diminution of Reno’s expectation of privacy in his house. The officers’ use of the key to gain entry, therefore, constituted an unlawful entry. In the vocabulary of the levy and repossession cases, the entry did not constitute a peaceable or reasonable entry in that it violated Reno’s expectation of privacy in his house. Another reason for finding that the entry was unlawful apparently figured in the district court’s decision. The district court judge stated, “In reviewing the language of the execution itself, there’s no specific language which would allow the State to enter the locked premises.” We assume this refers to the statutory provision for levying special executions “as the court determines.” K.S.A. 60-2401(d). We interpret the district court’s rationale to have been that entry into a locked dwelling would be prohibited unless specifically authorized by the court. Here, the writ of execution was not an order of the court authorizing the officers to enter the locked residence of the defendant. Such an order could be issued in aid of execution under K.S.A. 60-2419. We conclude that the officers’ initial intrusion into Reno’s house was unlawful, and the evidence is not admissible under the plain view doctrine. The State’s fallback position is based on United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984), in which the Court held that evidence obtained in reasonable reliance on a defective search warrant is admissible. Applying Leon to this case, the State contends that the evidence seized from Reno’s house is admissible because there was no showing of bad faith on the part of the officers who executed the search warrant. The State contends that if the entry was unlawful, it was “cured” by the officers’ obtaining a search warrant before reentering the house and seizing the contraband. The State’s fallback position fails because Leon does not apply in the instant case. The admissibility of the evidence depends not on the good faith of the seizing officers but, rather, on the source of the information used to obtain the search warrant. The officers’ unlawful entry taints the evidence under the fruit of the poisonous tree doctrine. The question is whether the State can remove the taint under the “independent source” doctrine and not whether the subsequent search warrant cures the unlawful entry. The “independent source” doctrine is recognized by the United States Supreme Court as one of several means of removing the taint from such evidence. If the State can show that the seizure of the evidence resulted from a source independent from the unlawful entry, the evidence will be admitted. In Murray v. United States, 487 U.S. 533, 101 L. Ed. 2d 472, 108 S. Ct. 2529 (1988), the admissibility of evidence seized by federal agents through conduct similar to that which occurred in the instant case was before the United States Supreme Court. In Murray, federal agents observed suspected drug traffickers, including the two defendants, remove vehicles from a warehouse and then turn the vehicles over to others to drive. The vehicles were later stopped and lawfully seized and found to contain marijuana. The federal agents then entered the warehouse without a warrant, observed a number of bales of marijuana, and left. The agents then applied for a warrant to search the warehouse without mentioning the first entry or relying on any observations made in the warehouse, i.e., the presence of the bales of marijuana. Armed with the search warrant, the agents reentered the warehouse and seized the bales of marijuana. In discussing the policy behind the “independent source” doctrine, the Supreme Court said: “We see the incentives differently. An officer with probable cause sufficient to obtain a search warrant would be foolish to enter the premises first in an unlawful manner. By doing so, he would risk suppression of all evidence on the premises, both seen and unseen, since his action would add to the normal burden of convincing a magistrate that there is probable cause the much more onerous burden of convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers’ decision to seek a warrant or the magistrate’s decision to grant it. . . . Nor would the officer without sufficient probable cause to obtain a search warrant have any added incentive to conduct an unlawful entry, since whatever he finds cannot be used to establish probable cause before a magistrate.” (Emphasis added.) 487 U.S. at 540. The Supreme Court further stated: “To apply what we have said to the present cases: Knowledge that the marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry. But it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entiy there is no reason why the independent source doctrine should not apply.” 487 U.S. at 541. The Supreme Court identified the question before it as “whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.” 487 U.S. at 542. Although the federal district court found that the agents did not reveal the warrantless entry or what they observed in the warehouse, “[i]t did not, however, explicitly find that the agents would have sought a warrant if they had not earlier entered the warehouse.” 487 U.S. at 543. For that reason, the district court’s denial of the defendants’ motion to suppress was vacated, and the case was remanded for the district court to make that determination. Here, the application for the search of defendant’s residence does not mention the method of entering defendant’s residence but clearly stated what the officers observed while in the residence. It is undisputed that the officers were “prompted to seek the search warrant” by their observation of marijuana in the initial entry, and that observation was presented to the magistrate and was the sole basis of requesting the search warrant. Thus, the “independent source” doctrine does not apply, and the evidence seized as a result of the execution of the search warrant is not admissible. The district court correctly found the initial entry to be illegal but suppressed the evidence based on the failure of the State to inform the magistrate of the circumstances of the initial entry. The district court took its cue from the State’s argument that Leon applied. The State fails to address the question of omissions and misleading statements in the affidavit. Instead, it frames the question of the executing officers’ reasonable-reliance on the search warrant as one of uncertainty about the lawfulness of entering the locked dwelling. Here is the State’s argument: “[N]or was it entirely unreasonable for an officer to believe the warrant valid. Even if the court finds now, in retrospect, that the sheriff has no power to enter peaceably, a dwelling in order to gain possession of items in a special execution, the deputies could not have known at the time that this would be the court’s ruling. If the court now rules that this first entry into the dwelling of Reno ‘taints’ the warrant, then it punishes the officers for failing to predict what would be the court’s interpretation of the civil execution law. This is surely not an act of bad faith on the part of the officers.” The twisted logic of this argument seems to spring from the misconception that the district court found bad faith in the initial intrusion. In fact, what the district court commented on were the less than candid aspects of. the affidavit supporting the warrant. One of those aspects was concealment of the nature of the initial intrusion. If the affiant had revealed the actual circumstances of the entry and the subsequent discovery of contraband and the magistrate had issued the warrant, there would be no issue of bad faith. Interpretation of the . civil execution law in that case would have been left up to the magistrate: The affidavit was misleading, though, due to omissions and false implications by the police. Even if Leon applied, a search warrant issued by a magistrate from whom material facts had been withheld cannot be reasonably relied upon by the officer. In summary, if the initial entry into Reno’s locked house was lawful, the drugs and drug paraphernalia seen in plain view inside the house could have been seized without a warrant and have been admissible under the plain view doctrine. Since the initial entry was unlawful, the plain view doctrine is not applicable; thus, what the officers observed in plain view cannot be subsequently used as the basis for obtaining a search warrant. The district court did not err in suppressing the evidence seized from defendant’s residence. We next consider the admissibility of the evidence seized during the officers’ encounter with defendant on a public street. The State argues that Reno’s discarding the vial of white powder was not a response to police misconduct and that the vial, therefore, is admissible. The State’s argument depends on Officer Benard’s initial stop of Reno being valid. Reno contends the officer did not have a reasonable and articulable suspicion that he had committed, was committing, or was about to commit a crime as required by K.S.A. 22-2402. Reno also contends that the stop in the present case also was made as a matter of standard procedure. Officer Benard testified that he always stopped persons walking in residential neighborhoods in the early morning hours, and he conceded that the stop was due at least in part to this “standard procedure.” In State v. McKeown, 249 Kan. 506, 509-10, 819 P.2d 644 (1991), we said: “An officer who does not have reasonable suspicion to justify a Terry stop may, however', approach an individual on the street for investigative purposes. State v. Epperson, 237 Kan. 707, 713, 703 P.2d 761 (1985); State v. Marks, 226 Kan. 704, 708-09, 602 P.2d 1344 (1979). The officer can ask the individual’s name and request identification but cannot force the individual to answer. The individual is free to leave. “In Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983), the United States Supreme Court reasserted that the Fourth Amendment was not violated by a law enforcement officer’s merely approaching an individual on the street or other public place, asking him questions if he is willing to answer, or putting questions to him if he is willing to listen. See Dunaway v. New York, 442 U.S. 200, 210 n.12, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979); Terry v. Ohio, 392 U.S. at 34 (White, J., concurring). The Court in Royer noted: ‘The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. Terry v. Ohio, 392 U.S. at 32-33 (Harlan, J., concurring); id., at 34 (White, J., concurring). He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. United States v. Mendenhall, [446 U.S. 544, 556 (1980)] (opinion of Stewart, J.). If there is no detention — no seizure within the meaning of the Fourth Amendment — then no constitutional rights have been infringed.’ 460 U.S. at 497-98. “The stop of a vehicle being driven upon the streets, however, is different than merely approaching an individual in a public place. Such a stop always constitutes a seizure. Therefore, to stop a moving vehicle an officer must have articulable facts sufficient to constitute reasonable suspicion under K.S.A. 22-2402 and Terry. Delaware v. Prouse, 440 U.S. 648, 661-63, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). To stop a vehicle to investigate circumstances which provoke suspicion, an officer must be aware of ‘specific articulable facts,' together with rational inferences from those facts, that reasonably warrant suspicion’ that the vehicle contains individuals involved in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975).” In State v. Johnson, 253 Kan. 75, 80, 853 P.2d 34 (1993), we said: “The stop of a vehicle, under the circumstances set forth in K.S.A. 1992 Supp. 22-2402 and Terry, is different than merely approaching an individual in a public place. Such a stop always constitutes a seizure. Therefore, to stop a moving vehicle an officer must have articulable facts sufficient to constitute reasonable suspicion. See Delaware v. Prouse, 440 U.S. 648, 661-63, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). To stop a vehicle to investigate circumstances which provoke suspicion, an officer must be aware of ‘specific articulable facts, together with rational inferences from the facts, that reasonably warrant suspicion’ that the vehicle contains individuals involved in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975). See State v. McKeown, 249 Kan. at 510.” However, in the present case, Officer Benard had reason to suspect that Reno was violating Chanute Municipal Code § 5.16.130 in that he had in his possession an open container of alcoholic liquor. Thus, this court’s decision in State v. Guy, 242 Kan. 840, 752 P.2d 119 (1988), is controlling. In Guy, this court held: “Here, when the stop was made, an officer had observed the Cadillac being driven at a speed in excess of 100 miles per hour — clearly in excess of the then maximum speed limit on that interstate highway, 55 miles per hour. Under K.S.A. 22-2402, an officer may stop a person whom he sees commit a crime, whether it be a felony, a misdemeanor, or a traffic offense. K.S.A. 1987 Supp. 21-3105, and 22-2402. “The detectives here involved were not traffic officers. They were not driving on Interstate 70 with the primary purpose of enforcing the traffic code. They had a hunch or a suspicion that defendants were involved in drug trafficking, but they had no sound basis, no facts, upon which to reach that conclusion. When the Cadillac exceeded the speed limit by more than 45 miles per hour, however, the law enforcement officers who observed that conduct had a lawful basis upon which to stop the vehicle. “The officers were candid in stating their underlying and principal purpose in pursuing and stopping the vehicle. Had the stop been made as defendants turned onto the Interstate highway, and before either officer observed any unlawful conduct, we would have an entirely different situation. However, that is not the case before us. Detective Poore observed a violation of the law. Whatever his underlying motive, he had the authority and the duty at that point to stop the speeding car.” 242 Kan. at 843-44. The stop was valid pursuant to K.S.A. 22-2402(1) and, thus, the subsequent frisk of Reno was permissible under 22-2402(2). We conclude the district court erred in suppressing the use of the vial and pen casing as evidence against Reno. The State’s appeal in case No. 93CR333CH is denied. The State’s appeal in case No. 93CR385CH is sustained.	[ 113, -20, -32, 28, 44, -30, 58, 42, 67, -93, 112, 83, 45, -54, 1, 123, 123, 29, 117, 121, -62, -78, 119, -127, -46, -5, -8, -35, -69, 91, -84, -28, 94, -16, -118, 85, 66, -126, -89, -40, -114, 1, -119, -16, 71, 8, 60, 35, 126, 15, 113, 46, -29, 43, 30, -14, -56, 44, -53, -83, 120, -15, -21, 95, -37, 18, -126, 2, -122, 13, -40, 59, -104, 57, 0, -24, 115, -74, -116, 100, 71, -117, 32, 38, 99, 1, -35, -85, 36, -116, 15, 123, -113, -89, -102, 72, 107, 97, -106, -99, 109, -78, 42, -2, -29, -60, 93, 108, -114, -34, -48, -109, 13, 56, -126, 91, -17, -91, 96, 113, -115, -30, 88, 71, 80, 27, -60, -78 ]
The opinion of the court was delivered by Six, J.: This is a flood damage statute of limitations case. Robert and Shirley Isnard sued the City of Coffeyville (City), alleging nuisance and negligent design. The City’s underground storm sewer allegedly caused flood damages to the Isnards’ furniture store and warehouse during heavy rains, beginning in June 1985. The Isnards asserted claims for both permanent and temporary damages (the value of their real property, inventory, lost income, and other miscellaneous expenses). The district court granted summary judgment to the City, ruling that the claims were barred by K.S.A. GO-SIS, a 2-year statute of limitations. In an unpublished opinion filed August 4, 1995, the Court of Appeals agreed that the permanent damage claim for diminution of property value was time barred, but reversed on the claim for temporary damages. We granted the City’s petition for review. Our jurisdiction is under K.S.A. 20-3018(b). The issue is whether the Isnards’ claim for temporary damages to personal property and cost of repair to buildings is barred by K.S.A. 60-513(a)(4)? The answer is, “Yes.” We reverse the Court of Appeals. All of the Isnards’ claims are time barred. The Isnards, in their brief filed in the Court of Appeals, observe: “If this court finds that the construction of the storm water drainage system creates a permanent injury to the plaintiffs, then the cause of actions sounding in tort must fail.” We now turn to an analysis of why the tort claims fail. FACTS The Isnards owned and operated Chairworld and United Warehouse, businesses located in the City. In 1981, the City began construction of a new storm sewer system. Phase One of the project included the installation of two adjacent underground concrete culverts, each measuring 3 feet tall and 5 feet wide, running for 200 feet. This part of Phase One, which took 2 to 3 months to complete, ran directly in front of Chairworld. Phase One, as a whole, took approximately 9 months to finish. Phase Two involved the installation of additional drainage systems, running north of Phase One for approximately two blocks. Workers completed the entire project sometime in 1984. Robert Isnard knew that the new storm sewer system was a permanent and substantial structure that could not be easily moved. On June 4, 1985, the City received over 7 inches of rain. As a result, both Chairworld and United Warehouse were flooded extensively. Robert Isnard attributed the flooding to the new storm sewer system. One or both of the Isnards’ businesses were flooded again on July 13, 1986, September 16, 1986, September 29, 1986, September 30, 1986, October 3, 1986, June 10, 1989, August 19, 1989, August 20, 1989, June 14, 1990, June 15, 1990, April 18, 1993, and May 18, 1993. In March 1986, Robert consulted an attorney about filing an action to recover damages for injuries suffered in the floods. The petition against the City was originally filed on October 9, 1991. The Isnards asserted claims against the City on the grounds of negligence, nuisance, and inverse condemnation. The City filed a motion for summary judgment, claiming (1) the negligence and nuisance claims were barred by K.S.A. 60-513 and (2) the inverse condemnation claim had no basis in fact. The district court granted the City’s motion for summary judgment, and the Isnards appealed, but raised only the issue of whether their negligence and nuisance claims for damages incurred during the 2 years before filing the action were time bárred. The Court of Appeals determined that the Isnards’ claims for flood damages to inventory, other personal property and equipment stored in their buildings, and to the insulation and structural integrity of the buildings were temporary and not barred. The claims for diminution in property value were permanent damages, and thus time barred. The district court was affirmed on the permanent damage claims. The City petitioned for review on the issue of whether the Isnard’s temporary damages were time barred. The Isnards did not cross-petition for review on the permanent damages issue. DISCUSSION Summary judgment is appropriate when all of the evidence shows that there is no genuine isstie of material fact and that the moving party is entitled to judgment as a matter of law. See Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994). When the only question presented is a question of law, summary judgment is proper. Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993). To preclude summary judgment, the party opposing the motion must come forward with evidence to establish a dispute as to a fact that is material to the conclusive issues in the case. Kerns, 255 Kan. at 268. The Isnards assert that summary judgment was improper because the district court erred in analyzing the law applicable to temporary damages, not because of any disputed material fact. Liability of City The universal rule is that municipal corporations are liable for damages occasioned to private property from the overflow of surface waters resulting from the fault of the municipality, its officers, and its agents. Welch v. City of Kansas City, 204 Kan. 765, 768, 465 P.2d 951 (1970) (citing King v. City of Kansas City, 58 Kan. 334, 49 Pac. 88 [1897]). The City owed a duty not to cause an overflow of surface water onto the Isnards’ property and is liable for damages. The parties agree that the applicable statute of limitations is K.S.A. 60-513(a)(4), which provides that the action must be brought within 2 years. K.S.A. 60-513(b) provides in relevant part: “[T]he causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party.” In Roe v. Diefendorf, 236 Kan. 218, 222, 689 P.2d 855 (1984), we interpreted K.S.A. 60-513(b) as follows: “We hold the use of the term ‘substantial injury’ in the statute does not require an injured party to have knowledge of the full extent of the injury to trigger the statute of limitations. Rather, it means the victim must have sufficient ascertainable injury to justify an action for recovery of the damages, regardless of extent.” We have considered whether the injury was permanent or temporary as the determinative factor in commencing the statute of limitations in damage actions from flooding caused by construction. Johnson v. Board of Pratt County Comm’rs, 259 Kan. 305, Syl. ¶ 9, 913 P.2d 119 (1996). “Each case must be considered in its own factual setting.” Olson v. State Highway Commission, 235 Kan. 20, 24, 679 P.2d 167 (1984). We most recently addressed the statute of limitations in the context of temporary and permanent damages from flooding in Johnson, 259 Kan. 305. Oneita and Clara Johnson owned separate tracts of land downstream from a newly replaced bridge. Each tract sustained erosion damage allegedly because of the widened bridge opening, road elevation, and channel excavation, causing increased water flow in the channel during floods in 1988 and 1991. On review, we affirmed the Court of Appeals, on the statute of limi tations issues, but said that Oneita’s 1991 flood damages would not be time barred if the trier of fact, on remand, determines that her 1988 flood damages were temporary. 259 Kan. at 330. “We question the reasoning of the Court of Appeals in acknowledging that Oneita’s 1988 erosion damages were permanent and time barred, while holding that she is not time barred from claiming her 1991 erosion damages. If Oneita suffered permanent damages in 1988, then her cause of action for permanent damages accrued as of that time, and she should have brought her claim for past, present, and future damages at one time within the 2-year statute of limitation. See McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶ 8, 662 P.2d 1203 (1983); Thierer [v. Board of County Commissioners, 212 Kan. 571, 575, 512 P.2d 343 (1973)].” 259 Kan. at 323. Although the replacement bridge was a permanent structure, and Oneita’s land suffered erosion damage permanent in nature, the county, in 1988, attempted to abate the alleged cause of damage to Oneita’s land and made a representation to her concerning its abatement efforts. In addition, the county had not obtained a permit required under K.S.A. 82a-301 before construction of the bridge. Thus, we reasoned that the question of whether Oneita’s 1988 flood damages were temporary or permanent remained a material issue of fact. 259 Kan. át 323. Both the Isnards and the City look to Johnson for support of their contentions in this case. Like Johnson, this case involves a permanent structure. Unlike Johnson, the City never promised or made any remediation or abatement efforts after the many floods. The Isnards have not requested abatement, and at oral argument, their counsel did not suggest it as a realistic possibility. The question of abatability is not a material issue of fact. Even the Isnards assume the whole system would need to be replaced to solve the flooding problem. Johnson involved two floods of a river in a 3-year span, one flood being more than 2 years before filing the action. In this case, the Isnards experienced nine floods, all more than 2 years before filing of the action, caused by surface water backing up from the storm sewer after heavy rains between June 1985 and October 1989. In McAlister v. Atlantic Richfield Co., 233 Kan. 252, 662 P.2d 1203 (1983), plaintiff landowner discovered an excessively high salt content in the water when he drilled a well. He sued oil companies drilling in the vicinity for pollution damage to his fresh water well. He later filed a second lawsuit against two additional oil companies that had conducted operations near the property in the 1930’s and 1940’s. The defendants in the second lawsuit moved to dismiss, raising K.S.A. 6Q-513(a). The district court granted the motion. McAlister labeled his damages as permanent in the petition. After the district court ruled the damage claim was time barred, McAlister filed a motion to amend his petition to claim the oil pollution damages were temporaiy and therefore not time barred. The motion was denied. 233 Kan. at 261. We determined that the pollution damages were permanent and time barred. The defendant oil companies had ceased drilling operations decades earlier. We stated in McAlister: “Temporary damages or continuing damages limit recovery for injury that is intermittent and occasional and the cause of the damages remediable, removable, or abatable. Damages are awarded on the theory that the cause of the injtiry may and will be terminated. Temporary damages are defined as damages to real estate which are recoverable from time to time as they occur from injury. 25 C.J.S., Damages § 2, p. 626. “Permanent damages are given on the theory that the cause of injury is fixed and that the property will always remain subject to that injury. Permanent damages are damages for the entire injury done — past, present and prospective — -and generally speaking those which are practically irremediable. 25 C.J.S., Damages § 2, pp. 622-23. If an injury is permanent in character, all the damages caused thereby, whether past, present, or prospective, must be recovered in a single action.” 233 Kan. at 262. McAlister dealt with long-ceased drilling operations resulting in permanent contamination, as compared to the periodic storm sewer flooding in this case. By 1986, the Isnards had been flooded often because of surface water attributed to the storm sewer system and knew that the situation was not going to change. Robert Isnard estimated that since the first flood of 1985, flooding has occurred with progressively less rainfall. Isnard attributed permanent damage to his property from the construction of the storm sewer as far back as 1985. Although Isnard knew that the June 4,1985, flooding was caused by the underground storm sewer system and he believed the system was inadequate, the Isnards continued to keep inventory in both buildings. They continued to experience flood damage on eight more occasions before October 9, 1989, 2 years before suit was filed. The storm sewer system is a permanent structure. The Isnards did not request abatement in their petition and do not suggest it as a likely possibility. At oral argument, counsel for the Isnards conceded that the City had never promised or agreed to do anything to rectify the problem. The most counsel could say was that the Isnards “hoped and expected” that the City would do something. A review of the Isnards’ prayer, in the petition reveals that they are claiming both temporary and permanent damages incurred from the sewer and drainage project constructed by the City, including the following: “1. Inventory in Chairworld; 2. Real property of Chairworld; 3. Lost income; 4. United Warehouse inventory; 5. Liabilities to renters; 6. United Warehouse real property; 7. Out of pocket expenses; 8. Value of Eight (8) other real property parcels; 9. Loss of miscellaneous due to foreclosure.” The Isnards, in their brief filed in the Court of Appeals, cite two of our cases to advance their claims. In the first case, Bowen v. City of Kansas City, 231 Kan. 450, 646 P.2d 484 (1982), Wilcox was contracted to move rock and dirt in a manner that obstructed the natural flow of water in culverts. Wilcox undertook this work between 1962 and 1969 and, upon completion, had no authority or control over the affected property. When the plaintiffs’ land was flooded in the mid-1970’s, they sued Wilcox, Kansas City, Kansas, and the State Secretary of Transportation. The district court granted Wilcox’s motion for summary judgment. We affirmed, ruling that any action against Wilcox accrued at the time the first injuiy was suffered. Generally, when a nuisance is temporary and abatable, a new cause of action arises with each new injury. In Bowen, however, the nuisance was not abatable, as to Wilcox because he had neither the ability nor the duty to abate the nuisance. 231 Kan. at 454-55. In the second case, Gowing v. McCandless, 219 Kan. 140, 547 P.2d 338 (1976), the defendant in 1965, obstructed a ditch which provided drainage for plaintiffs’ farm ground. Plaintiffs sued in 1972, claiming damages for lost crops in the prior 3 years. Plaintiffs also alleged that defendants violated K.S.A. 82a-301 (Weeks 1969) by failing to obtain a permit to obstruct the watercourse. The trial court awarded damages. On appeal, defendants argued the action was time barred, claiming plaintiffs sought permanent damages. We affirmed the trial court, stating: “In the instant case the evidence does not show the cause of the injury to be permanent. In many cases injuries have been classified as temporary or recurring in nature when caused by an abatable nuisance or condition, or by defects which can be repaired or remedied at reasonable expense. . . . “[T]he owner of land injured by overflows and poor drainage caused by an abatable condition or nuisance has the right to assume the condition or nuisance will be abated. Here the appellees presented evidence that the obstructions were not permanent.’ That is to say, the obstructions could be removed from the drainage ditch. In a legal sense these obstructions were not ‘permanent’ because they were not approved by the state. Moreover, the appellees presented evidence that the appellants agreed to examine the drainage ditch and consider removing the obstructions.” 219 Kan. at 145. (Emphasis added.) The obstructions causing the injury were not permanent. Neither Bowen nor Gowing advances the Isnards’ temporary damage claim. The Court of Appeals Decision In considering whether the damages were temporary or permanent, the Court of Appeals identified three factors: “(1) the nature of the causative structure, (2) the nature of the damages, and (3) the ability to determine or estimate damages.” These factors are well supported in the case law. Initially, the Court of Appeals acknowledged: “The sewer system constructed by the City in the present case is a permanent and fixed structure that took several years to construct at considerable cost. It is not an abatable nuisance.” The Court of Appeals identified two types of damages occurring between October 1989 and October 1991 that were not damages to the real estate: (1) inventory or personal goods stored in the two flouded buildings, and (2) damage to the physical integrity of the buildings, including replaceable water-soaked sprayed-on insulation. The Court of Appeals observed: “The evidence shows that the injuries to the personal goods were intermittent, occasional, and temporary. The injuries varied from flood to flood and depended greatly on the level of the flood waters as well as the type, quantity, and nature of the stored goods. Even though the Isnards knew in 1986 that there could be additional injuries to stored goods in the future, the nature and extent of those injuries would have been impossible to determine at that point.” In McAlister, 233 Kan. at 264, the fact that the pollution was not abatable (at least for 150 to 400 years) was a key factor in our finding that the plaintiff’s damages were permanent and capable of being determined. If the cause of the damage is not abatable, then future damage determination is possible, because the parties can assume that the damage source will always be there and they can calculate monetary damages accordingly. The Isnards knew by June 1985 and certainly by June 1989 (when rains of 2 inches could result in flooding from the storm sewer) that, at least as to personal property kept in the two buildings, damage from flooding at some point (the next heavy rain) would be a virtual certainty during the time period at issue: October 1989 to October 1991. Anything sitting on the floor of the buildings could be “ascertained” to receive water damage. The Isnards knew that their buildings (and the insulation) would receive water damage with heavy rains and could have estimated the effect that the flooding would have on their furniture and warehouse businesses. As the City points out, the Isnards had control of what property was kept in the buildings during the times when flooding occurred. Ascertainment should not mean that the Isnards could predict the dates when the flooding will occur or the exact severity of flooding. Before October 1989, the Isnards had enough experience with the floods to gauge how much rain would cause the storm sewer to overflow. In Thierer, 212 Kan. at 572-73 (although temporary damages were not preserved as an issue on appeal), we determined that the loss of a low water crossing in 1966 was reasonably ascertainable when plaintiff’s levee broke in 1962. Likewise, flood damage to the Isnards’ personal property and buildings from October 1989 to October 1991 was reasonably ascertainable before October 1989. Therefore, those damages, despite the label placed on them by the Isnards, are considered as permanent damages capable of being determined before commencement of the limitations period. Based on the record in this case, we agree with the Court of Appeals that the storm sewer is a permanent, non-abatable nuisance. Under McAlister, the Isnards’ claims for all damages, past, present, and future, should have been brought in one action within 2 years of the time when those damages were capable of being determined. We reverse the Court of Appeals on the temporary damages issue and affirm the district court.	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The opinion of the court was delivered by Abbott, J.: This is a direct appeal by the defendant, Alvin L. Gaines, from his convictions in Johnson County District Court of one count each of rape, aggravated kidnapping, and aggravated criminal sodomy. On appeal, the defendant challenges the exclusion of expert trial testimony regarding eyewitness identification, makes a claim that the photographic lineup from which he was identified was unduly suggestive, and argues that the admission of his ex-wife’s trial testimony regarding his participation in toe sucking was improper. The victim in this case, 14-year-old J.K., was sexually assaulted in her neighborhood. J.K. was walking by a street light in the early morning hours when she heard footsteps behind her. J.K. turned and saw a man jogging toward her. The man told J.K., “That’s a long jog, isn’t it,” and asked J.K. where she was going. When J.K. told him, the man asked if he could walk with her. J.K. replied, “No,” and tried to run away. The man grabbed J.K. from behind. He put his hand over her mouth and placed a knife against J.K.’s throat. The man threatened J.K. that if she said anything he would cut her. The man led J.K. behind an air conditioning unit of a nearby home. She was told to remove her clothes. For approximately an hour, the man forced her to engage in sexual activity. At one point, the defendant took J.K.’s right foot and brushed it off with his hand; then the man started sucking on J.K.’s right big toe as if he were sucking on a thumb. Later, he picked up the same foot and sucked on J.K.’s big toe again. During much of the attack, J.K.’s sweater was pulled up over her head. J.K. testified that she could see the man through the sweater. J.K. reported the incident to the police and described her attacker as a stocky man with a pretty big belly, who was dressed in a dark shirt and pants, a dark ball cap, -running shoes, and glasses. A police officer also testified that J,K. described her attacker as being very dark complected. Shortly after the attack, the police showed J.K. a photographic lineup in which at least three of the pictures were of very dark-complected men. This lineup did not contain a picture of the defendant. J.K. thought that one of the pictures resembled the attacker, but-stated it was not him. J.K. also looked at a large number of pictures in mug books containing pictures of white, Hispanic, and Native American men. J.K. thought that two of the pictures resembled her attacker, but stated neither man was her attacker. Following the assault, J.K. underwent fairly severe anxiety attacks. She experienced panic attacks whenever she saw any dark-skinned man who generally resembled.the attacker. On one occasion, she was working as a hostess, at a .local restaurant. She saw a man enter with his family, and after hearing him speak, she thought he might be her attacker. She called the police, who came to the restaurant. The police talked to the man in front of the restaurant while J.K. observed the man with binoculars from a police car. She decided that the man was not the man who had attacked her. Nearly 2 years after the attack, the police asked J.K. to look at some more pictures. J.K. went to the police station, signed an orientation sheet, and looked at a six-person-photographic lineup. This second photographic lineup was not.race-specific. A photograph of the defendant, a Native American, was included in the lineup. J.K. immediately identified the defendant’s picture as the man who attacked her. At trial, J.K. identified the defendant as the person who attacked her. In identifying the defendant at trial, J.K. stated, “I just know one hundred percent for sure. Because of the facial features that he has and I never forgot exactly what he looked like.” The defendant’s trial centered on identification issues. The defendant’s ex-wife testified that she married the defendant in August 1987 and that the two were married' for 1 year. She testified that on about five occasions, during the course of sexual activity, the defendant had sucked on her big toes. The defendant would suck on her big toe as if he were sucking on a thumb. In his defense, the defendant tried to admit the testimony of an expert witness on the issue of eyewitness identification. The district court excluded this testimony. The court found that most of the testimony did not provide information which was beyond a jury’s common knowledge and that some of the testimony invaded the province of the jury by evaluating the confidence and credibility of J.K. and her eyewitness identification testimony. EYEWITNESS IDENTIFICATION The defendant filed a pretrial motion requesting permission to introduce the testimony of an eyewitness identification expert at trial. At a hearing on the motion, the defendant made a proffer of the expert’s testimony. The expert’s proffered testimony focused on the problems of eyewitness identification. He discussed the increased possibility of error in cases involving cross-racial identification, and he noted that high levels of stress could possibly reduce the accuracy of an identification, depending upon the stressor and how a person responds to stress. The expert witness also discussed how the passage of time could decrease the likelihood of an accurate identification. Finally, the expert explained how scientific studies have demonstrated that there is a low correlation, if any, between a witness’ level of confidence in an identification and the actual accuracy of the identification. The court denied the defendant’s pretrial motion and excluded the expert testimony from trial. In so holding, the trial- court found that expert testimony on the reliability or accuracy of a witness’ identification was precariously close to expert testimony regarding the witness’ credibility as a witness. Thus, the court found the testimony improperly invaded the province of the jury. At trial, the defendant renewed his proffer of this expert testimony, which the trial court excluded. However, the trial court did modify the PIK Crim. 3d 52.20 jury instruction on eyewitness identification by removing factor 6 relating to the degree of certainty demonstrated by the eyewitness. The defendant challenges the district court’s exclusion of the eyewitness identification expert testimony. “The admissibility of expert testimony is within the broad discretion of the trial court. A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion.” See State v. Cheeks, 253 Kan. 93, 99, 853 P.2d 655 (1993); Marshall v. Mayflower Transit, Inc., 249 Kan. 620, Syl. ¶ 8, 822 P.2d 591 (1991); In re Application of City of Great Bend for Appointment of Appraisers, 254 Kan. 699, Syl. ¶ 5, 869 P.2d 587 (1994). According to the defendant, several factors, which were beyond common knowledge and understanding of the jurors, made the victim’s eyewitness identification unreliable. Thus, the defendant argues that an expert was necessary to generally identify and explain these factors to the jury. These factors included the cross-racial identification, the 2-year length of time between the attack and the identification, the lineup procedure, the extreme stress the victim experienced during .the attack, the victim’s previous near-identifications of persons with similar features, and the fact that the degree of certainty expressed by the victim in her identification of the defendant had little, if any, correlation to the reliability of her identification. The defendant asserts that the court could have allowed the expert witness to testify and restricted the expert from offering a direct opinion that the victim was mistaken in her identification of the defendant as her attacker. In this manner, the expert could have informed the jury of information beyond their common knowledge without entering into the jury’s province and testifying as to the credibility of an eyewitness or her identification testimony. On the other hand, the State asserts that the expert testimony on eyewitness identification attempted to invade the province of the jury and was properly excluded. This court’s position on the admissibility of expert testimony regarding eyewitness identification has evolved over the last 2 decades, as illustrated in a discussion of the following cases. In State v. Reed, 226 Kan. 519, 601 P.2d. 1125 (1979), a jury convicted the defendant of rape- and aggravated kidnapping. The convictions were based mainly on the victim’s identification of the defendant as the perpetrator. At trial, the defendant tried to admit expert testimony regarding the reliability of eyewitness identification. The trial court denied the defendant’s motion to admit such testimony, and the defendant appealed the ruling. This court noted that the admission of expert testimony into evidence is a matter within the trial court’s discretion. The court then gave some guidelines for the district court to use in exercising its discretion: An expert witness may testify and give his or her opinion regarding the ultimate issue of the case; however, the testimony is only admissible if it actually assists the jury. Expert opinion testimony is admissible when it “ ‘will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence.’ ” 226 Kan. at 521 (quoting Massoni v. State Highway Commission, 214 Kan. 844, Syl. ¶ 3, 522 P.2d 973 [1974]). An expert’s opinion testimony is inadmissible if the expert is required “ ‘to pass upon the credibility of witnesses or the weight of disputed evidence.’ ” Reed, 226 Kan. at 521 (quoting Smith v. Estate of Hall, 215 Kan. 262, Syl. ¶ 3, 524 P.2d 684 [1974]). Expert testimony is not limited to issues of science, art, or skill. Nonetheless, expert opinion testimony “cannot invade the field of common knowledge, experience and education” of a layperson, and “it cannot usurp the function of the jury if such testimony touches the very issue before the jury.” Reed, 226 Kan. at 521-22 (citing United States v. Brown, 540 F.2d 1048 [10th Cir. 1976], cert. denied 429 U.S. 1100 [1977]). Two years later, this court decided State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981). The only issue in the case was the identity of the defendant as one of the two robbers who took money from a restaurant. One of the robbers identified the defendant as the other robber of the restaurant. The restaurant owner testified at trial and identified the defendant as one of the robbers. The owner testified that the robbery took less than a minute and a half and that most of the time he was staring at the confessed robber, not the second robber. The owner stated that he only looked at the second robber, which he identified as the defendant, for about 15-20 seconds. The owner did not identify the defendant as the second robber until 4Vz months later, when they were both in a courtroom. To combat the owner’s eyewitness identification of the defendant as the second robber, the defendant tried to admit into trial expert testimony regarding the unreliability of eyewitness identification. The defendant also requested that the trial court provide a cautionary jury instruction concerning eyewitness identification. The trial court refused to allow the expert testimony or provide a special jury instruction, and the defendant was convicted of aggravated robbery. In addressing these issues, this court emphasized the unreliability of eyewitness identification and the importance of not convicting innocent defendants. The court also pointed to several cases in which innocent defendants have been wrongly convicted based on eyewitness identifications and to the methods which other countries and courts have adopted to prevent a defendant from being wrongly convicted. 230 Kan. at 393-97. The Warren court affirmed Reed, finding that the admission of expert testimony regarding eyewitness identification is within the trial court’s discretion and the refusal to admit such testimony will not be reversed unless an abuse of discretion occurs. The court found that in Warren, the reliability of the eyewitness identification was within the realm of the jurors’ knowledge and experience. Thus, the Warren trial court did not abuse its discretion in refusing to admit expert testimony regarding the reliability of eyewitness identification. 230 Kan. at 394-97. This court did find, however, that the trial court erred by not providing a cautionary jury instruction concerning eyewitness identification. 230 Kan. at 399-400. This court “concluded that any criminal action in which eyewitness identification is a critical part of the prosecution’s case and there is a serious question about the reliability of the identification, a cautionary instruction should be given advising the jury as to the factors to be considered in weighing the credibility of the eyewitness identification testimony.” 230 Kan. at 397. PIK Crim. 3d 52.20, the current cautionary jury instruction concerning eyewitness identification, was promulgated as a direct result of Warren. In distinguishing between expert testimony and a cautionary jury instruction, this court made the following statement: “After considering these cases and the literature on the subject, we have concluded that requiring trial courts to admit this type of expert evidence is not the answer to the [eyewitness identification] problem. We believe that the problem can be alleviated by a proper cautionary instruction to the jury which sets forth the factors to be considered in evaluating eyewitness testimony. Such an instruction, coupled with vigorous cross-examination and persuasive argument by defense counsel dealing realistically with the shortcomings and trouble spots of the identification process, should protect the rights of the defendant and at the same time enable the courts to avoid the problems involved in the admission of expert testimony on this subject.” 230 Kan. at 395. Two months after the Warren decision, this court decided State v. Reynolds, 230 Kan. 532, 639 P.2d 461 (1982). In Reynolds, the defendant appealed his conviction of aggravated robbery, alleging that the trial court improperly refused to authorize the payment of an expert to testify regarding eyewitness identification. This court interpreted Warren as standing for the proposition that “expert testimony on the subject of eyewitness identification is not admissible.” 230 Kan. at 534. The court acknowledged that the eyewitness identification in Reynolds involved a cross-racial identification by a witness who was highly stressed when the brief encounter with the robber occurred. However, this court found such concerns were not enough to allow expert testimony regarding eyewitness identification. This court stated: 'While these are important factors bearing on the witness’s identification, they are fully capable of being elicited, and in fact were elicited, during other testimony. Accordingly, we find no abuse of discretion in the trial court’s refusal to authorize the services of an expert on eyewitness identification.” 230 Kan. at 535. In State v. Willis, 240 Kan. 580, 731 P.2d 287 (1987), the defendant wished to include four new factors to the pattern cautionary jury instruction concerning eyewitness identification. When evaluating the eyewitness identification, the defendant wanted the jury to consider such factors as transracial identification (“own-race effect”), unconscious transference, after-acquired experience, and the “feedback” factor. This court found that the seven factors currently enumerated in the cautionary jury instruction were within the realm of a typical jury’s understanding and that a jury does not need expert testimony to explain how to apply these factors. How ever, the Willis court found that including the factors requested by the defendant in the instruction would require expert testimony to explain to the jury how to apply the factors because the terms would be beyond the realm of a typical juror’s knowledge. Noting the problems with expert testimony on eyewitness identification, this court affirmed the trial court’s refusal to include these additional factors in the instruction. 240 Kan. at 585-86. Another recent opinion from this court which addressed the issue of expert testimony regarding eyewitness identification is State v. Wheaton, 240 Kan. 345, 729 P.2d 1183 (1986). In Wheaton, the defendant was convicted of aggravated robbery. At trial, the defendant sought to admit expert testimony as to the accuracy of an eyewitness identification when the eyewitness was under stress at the time of the observation and when a cross-racial identification is involved. The defendant made clear that her expert would not indicate to the jury whether a particular eyewitness’ identification was accurate. The trial court found the expert testimony was inadmissible under State v. Warren, 230 Kan. 385. The defendant appealed, contending that she was denied her Sixth Amendment right to obtain witnesses in her defense because the trial court refused to admit her expert’s testimony regarding eyewitness identification. In reviewing the district court’s exclusion of the testimony, the Wheaton court addressed whether it should overturn Warren and Reynolds and allow expert testimony regarding eyewitness identification. In Wheaton, the defendant argued that most of the studies addressing eyewitness identification had been conducted since the Warren case was decided. Further, the defendant asserted that a growing trend allowing expert testimony on eyewitness identification had begun because cross-examinations, closing arguments, and cautionary jury instructions could not adequately cure the problems associated with eyewitness identifications. The defendant then pointed to several recently decided cases which admitted into evidence expert testimony regarding eyewitness identification. The Wheaton court acknowledged this recent trend toward admitting into trial expert testimony regarding eyewitness identification. The court then addressed several of the cases which allow such testi mony, including United States v. Moore, 786 P.2d 1308 (5th Cir. 1986), cited by the defendant in the current case, and State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983), one of the trendsetting cases. 240 Kan. at 349-51. Chappie involved two eyewitnesses who were trying to identify some criminals they saw commit a murder. While looking at a photographic lineup, one of the eyewitnesses pointed to the picture of a man named Logan, who was not the defendant in the case, and said he resembled one of the murderers. This same witness was shown a photo lineup containing a picture of the defendant, but the witness did not identify the defendant as a murderer. Later, both of the eyewitnesses were shown another lineup which contained a picture of Perry, a man who had already been tentatively identified as one of the murderers, and a picture of the defendant, but it did not contain a picture of Logan. Both witnesses identified the defendant as one of the other murderers. The identification was made some time after the crime, and both the eyewitnesses had been smoking marijuana on the day of the crime. The defendant sought to present an expert witness at trial to testify about all the problems associated with these eyewitness identifications. The district court refused to allow this testimony. The Arizona Supreme Court reversed, finding that the trial court abused its discretion when it did not allow this testimony. 135 Ariz. at 290-92, 297. In analyzing Chappie, this court made the following comments in Wheaton: "The Arizona court stated it would not assume that ordinary jurors would be aware of the impact of the factors on eyewitness identification proffered by [the eyewitness identification expert]: (1) the ‘forgetting curve’ (forgetting occurs very quickly and then levels off, therefore, a prompt identification is more trustworthy than a delayed identification); (2) problems of ‘unconscious transfer’ (where a witness confuses a person seen in one situation with a person seen in a different situation); (3) the confidence expressed by the eyewitness has no relationship to the accuracy of the identification; (4) post-event information is frequently incorporated into identifications; and, (5) the ‘feedback factor’ (through discussions with other witnesses, the eyewitness can reinforce his or her individual identification). In ruling that the testimony of [the expert] was admissible, the court stated it was not opening the floodgates for expert evidence on the subject of eyewitness identification, but was allowing it under the peculiar facts before it. Gases subsequent to Chappie illustrate that the decision to allow general testimony as to factors affecting eyewitnesses identification is within the sound discretion of the trial court and limit Chappie to the peculiar circumstances of the case, including the fact that the eyewitness identification was all that tied the defendant to the crime.” 240 Kan. at 349-50 (citing State v. Via, 146 Ariz. 108, 704 P.2d 238 [1985], cert. denied 475 U.S. 1048 [1986]; State v. Rodriquez, 145 Ariz. 157, 700 P.2d 855 [1985]; State v. Poland, 144 Ariz. 388, 698 P.2d 183 [1985], aff'd 476 U.S. 147, 90 L. Ed. 2d 123, 106 S. Ct. 1749 [1986]). After analyzing these cases, this court pointed to numerous cases which upheld the trial court’s refusal to admit such testimony, including United States v. Moore, 786 F.2d 1308 (finding the trial court did not abuse its discretion by refusing to admit expert testimony regarding eyewitness identification because evidence of guilt was overwhelming and was not limited to a single eyewitness identification). See also United States v. Daniels, 64 F.3d 311, 315 (7th Cir. 1995), cert. denied 133 L. Ed. 2d 693 (1996) (finding that expert testimony on eyewitness identification is not permitted because it does not aid the jury in understanding facts, as this is an area in which the jury already has knowledge); and People v. Kelley, 631 N.Y.S. 2d 926, 927 (App. Div. 1995) (finding that the trial court properly excluded expert testimony regarding eyewitness identification because this subject “pertains to matters of common knowledge which are not beyond the ken of lay jurors,” making expert testimony unnecessary). After reviewing several cases which allowed expert testimony on eyewitness identification, the Wheaton court held that the district court did not abuse its discretion by refusing to allow expert testimony regarding eyewitness identification. In so holding, die court stated: “The defendant argues most studies on the subject of eyewitness identification have been performed since the Warren decision in 1981. Whether or not that is true, we continue to believe that to allow expert testimony on the subject of the reliability of eyewitness testimony is not the answer to the problems surrounding eyewitness identifications. The cautionary instruction sets forth the factors for the jury to consider in evaluating the eyewitness’ testimony. The defendant argues these instructions do not explain to the jury how to use the factors, e.g., that threat of violence decreases the accuracy of the identification rather than increases its accuracy, as many laymen believe. Extensive cross-examination of the eyewitness and persuasive argument by defense counsel can highlight any inaccuracies which could result because the eyewitness was being threatened or was under stress. State v. Warren, 230 Kan. at 395. . . . The trial court did not err in ruling the expert testimony on eyewitness identification was inadmissible.” 240 Kan at 352-53. The district court in this case properly refused to admit the testimony. We continue to follow the above line of cases and hold that expert testimony regarding eyewitness identification should not be admitted into trial. PHOTOGRAPHIC LINEUP On appeal, the defendant takes issue with the photographic lineup from which he was identified. Even though the victim had previously described her attacker as having dark skin, the defendant argues that he was the only dark-skinned man whose photo was in the second lineup from which he was identified. The defendant asserts that the lineup was unconstitutionally suggestive and that his identification from the lineup should have been suppressed. Further, the defendant argues that all of the victim’s subsequent identifications of him after the lineup were not constitutionally reliable because of the procedure used and, as a result, his identification should have been suppressed. Thus, the defendant asserts that his convictions, which are based on unreliable identifications from an improper lineup procedure, violate due process and should be reversed. At a pretrial suppression hearing, the defendant asked that the evidence concerning the lineup identification be excluded. The State countered that the lineup should not be suppressed even if the defendant was the only dark-complected male in the second lineup. It reasoned that when J.K. viewed the first lineup, which included three dark-complected men, and the mug books, which contained several pictures of Hispanic-looking males, J.K. did not identify anyone as her attacker simply because the individual was dark skinned. Thus, the State argued that the ultimate identification was constitutionally reliable. The trial judge denied the defendant’s motion to suppress at the pretrial hearing, finding that identification based on the lineup passed the test of reliability. On appeal, the defendant challenges this ruling. However, the defendant did not object to the admission of evidence concerning the second lineup at trial. When an unfavorable ruling on an evidentiary question prior to trial is received, a party must make a timely objection to such evidence when it is introduced at trial in order to preserve the issue for appeal. State v. McIver, 257 Kan. 420, Syl. ¶ 4, 902 P.2d 982 (1995). While the defendant argued at his sentencing hearing that the lineup procedure was invalid, he did not make this argument at trial. The defendant’s failure to object at trial to the second photographic lineup, the procedures used to create the lineup, and his subsequent identification from the lineup precludes review of these issues on appeal. See State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979) (failure to object to photographic identification at trial pursuant to K.S.A. 60-404 precludes the assertion of error on appeal). In any event, we have viewed the second photographic lineup and agree with the trial court that it is not unduly suggestive and hold that the trial court did not err in finding the photographic lineup to be valid. TOE SUCKING During the period of time J.K. was being attacked, her attacker twice sucked on her big toe as if he were sucking on a thumb. At trial, the State called the defendant’s ex-wife to testify. She testified that she married the defendant in August 1987 and the two were married for 1 year. She also testified that she and the defendant had sex on a regular basis during their marriage. She further testified that, on occasion, the defendant would suck on her big toe as if he were sucking on a thumb while they were engaged in sexual conduct. She stated that this .toe sucking occurred approximately five times during their 1-year marriage. The toe sucking was initiated by the defendant and not encouraged by his ex-wife. In a pretrial motion in limine, the defendant requested that this evidence be excluded from the trial. The defendant argued that the evidence was not relevant and that, it was character evidence which was being used in an improper, manner. The State responded by arguing that the evidence was relevant to prove a habit of the defendant which identified him as the attacker. The district court denied the defendant’s motion. The State introduced the ex-wife’s testimony at trial. The defendant objected to the introduction of the testimony at trial, but the trial court overruled the objection. The admission or exclusion of evidence is within the sound discretion of the trial court. State v. Rowell, 256 Kan. 200, Syl. ¶ 2, 883 P.2d 1184 (1994). Thus, in reviewing the denial of a motion in limine, this court must use the abuse of discretion standard. “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Judicial discretion must thus be considered as exercisable only within the bounds of reason and justice in the broader sense and be considered abused only when it plainly overpasses those bounds.” State v. Lumbrera, 257 Kan. 144, 148, 891 P.2d 1096 (1995). The defendant contends that K.S.A. 60-447, a statute which concerns character evidence, applies to the toe sucking evidence and should have prohibited its admission at the trial. Under K.S.A. 60-447, specific nonconviction instances illustrating a defendant’s character trait are inadmissible if they tend to prove a trait is bad and prove that a defendant conducted himself in a certain way on a specified occasion. This statute does not apply here because toe sucking is not a specific instance of a character trait. See State v. Ralph, 217 Kan. 457, 459, 537 P.2d 200 (1975) (“Drug addiction is not the type of ‘character’ trait dealt with in 60-447. It cannot be shown to be ‘good’ or ‘bad’, but is simply a medical fact.”). Toe sucking is not the type of character trait contemplated by 60-447. Rather, the statute refers to character traits such as violent, gentle, trusting, or angry. Toe sucking is not necessarily good or bad, but is simply a fact. Toe sucking is not a specific instance of character trait which tends to prove the trait is bad. As such, K.S.A. 60-447 does not apply and cannot be used to exclude the toe sucking evidence. The State contends that the toe sucking testimony was properly admitted under K.S.A. 60-449 and K.S.A. 60-450 as habit evidence. Under these statutes, evidence of specific instances of behavior is admissible to prove a habit and to prove that the defendant acted in conformity with the habit on a certain occasion. However, evidence of such specific instances is only admissible if there are a sufficient number of the instances to warrant a finding of a habit. The district court found that if the defendant participated in toe sucking with his ex-wife on several different occasions, then this constituted habit evidence. As such, the court found the ex-wife’s testimony should be admitted to prove that the defendant had a habit of toe sucking which he probably acted in conformity with when he assaulted the victim and sucked on her toe. However, the district court made this ruling and overruled the defendant’s objection to the evidence before it was clear just how many times the defendant had participated in toe sucking with his ex-wife. At trial, the defendant’s ex-wife testified that the defendant sucked on her toe approximately five times during the course of their 1-year marriage. Habit is defined as an action which is so ingrained in one’s character that it becomes mechanical or automatic. Pope v. Ransdell, 251 Kan. 112, 129, 130, 833 P.2d 965 (1992); see State v. Gonzales, 245 Kan. 691, 700-01, 783 P.2d 1239 (1989). “Isolated or occasional instances of behavior will not prove habit.” Pope v. Ransdell, 251 Kan. at 130. The defendant’s ex-wife indicated that she had sex on a regular basis with the defendant during their 1-year marriage but only participated in toe sucking five times. This would indicate that toe sucking was not an automatic or mechanical reaction by the defendant whenever he engaged in sexual activity. The toe sucking evidence does not qualify as habit evidence. Thus, K.S.A. 60-449 and 60-450 are not applicable to this evidence and did not permit or exclude this evidence at trial. Another statute which is often used to admit evidence of prior specific acts which are similar to the crime at issue is K.S.A. 60-455. This statute allows the admission of evidence that the defendant committed a prior crime or civil wrong to prove motive, opportunity, or identity. This statute does not apply to the toe sucking evidence because toe sucking is not a crime or civil wrong. See State v. Sexton, 256 Kan. 344, 349, 886 P.2d 811 (1994). In Sexton, the defendant was charged with killing the victim by strangulation. In defense, he argued that he and the victim were participating in sexual bondage. According to the defendant, when he tied up the victim, he accidentally tied her up too tightly. Then she straightened out her legs, which pulled the ropes around her too tightly, and she accidentally strangled herself. At trial, the defendant’s former wife was allowed to testify for the State that she and the defendant had engaged in sexual bondage 40 or 50 times over the course of their marriage. The State offered this testimony pursuant to K.S.A. 60-455 to prove lack of mistake or accident on the defendant’s part when he tied the ropes around the victim too tightly. The court held that K.S.A. 60-455 did not govern the admissibility of this testimony because “sexual bondage between consenting adults is neither a crime nor a civil wrong under Kansas law.” 256 Kan. at 349. Thus, this court held the testimony was admissible, independent of 60-455, as long as it was relevant and the trial court did not abuse its discretion in admitting it. Since toe sucking is not a crime or civil wrong, 60-455 does not apply to this evidence and does not govern its admissibility. “Any relevant evidence having a tendency in reason to prove any material fact is admissible, unless expressly excluded from evidence by the codified rules.” Williams v. Union Pacific Railroad Co., 204 Kan. 772, 780, 465 P.2d 975 (1970). None of the above exclusionary rules apply to this evidence. Thus, the evidence is admissible as long as it is relevant. “The question of whether evidence is too remote to be relevant is left to the discretion of the trial judge, whose decision will not be disturbed unless a clear abuse of discretion has been demonstrated.” State v. Milo, 249 Kan. 15, 26, 815 P.2d 519 (1991). The defendant contends that the trial court abused its discretion in admitting this evidence because it is not relevant. Relevant evidence is defined as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). “‘Relevancy is more a matter of logic and experience than of law. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence, or if it has any tendency in reason to prove any material fact.’ ” State v. Sexton, 256 Kan. at 349 (quoting State v. Baker, 219 Kan. 854, Syl. ¶ 2, 549 P.2d 911 [1976]); see K.S.A. 60-401(b). According to the defendant, there is no relevance between what type of sexual conduct he consensually engaged in with his adult married wife and the type of conduct an attacker forces on a young girl in a street attack. The defendant asserts that there is no rational basis for the conclusion that rapists like to do the same things with their victims that they do or did with their wives. On the other hand, the State contends that the toe sucking evidence was relevant. The perpetrator in this case sucked on the victim’s big toe as if he were sucking on a thumb. The toe sucking testimony by the defendant’s ex-wife indicated that the defendant had exhibited .this same behavior in the past. From this evidence, the State asserts that the inference can be made that the defendant, who engaged in toe sucking in the past, was the same person who attacked the victim and engaged in toe sucking when he attacked her. According to the State, the inference that the defendant is the man who attacked the victim is more probable with the admission of the toe sucking evidence than it would be without it. We agree. The toe sucking testimony by the defendant’s ex-wife is relevant. Thus, the district court did not abuse its discretion in admitting this testimony into evidence. Affirmed.	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Per Curiam: This is an uncontested attorney discipline proceeding involving Daniel H. Phillips, of Wichita, an attorney admitted to the practice of law in the State of Kansas. Three complaints filed by the office of the Disciplinary Administrator against respondent have been consolidated for purposes of this original proceeding in discipline. The complaints filed against respondent alleged that he violated MRPC 1.3 (1995 Kan. Ct. R. Annot. 257) (diligence), 1.4 (1995 Kan. Ct. R. Annot. 263) (communication), 1.5(b) (1995 Kan. Ct. R. Annot. 268) (fees), 1.15(a) and (b) (1995 Kan. Ct. R. Annot. 294) (safekeeping property), 1.16(a) (1995 Kan. Ct. R. Annot. 300) (declining or terminating representation), 3.3(a)(1) (1995 Kan. Ct. R. Annot. 311) (candor toward the tribunal), 4.1 (1995 Kan. Ct. R. Annot. 323) (truthfulness in statements to others), 8.4(a), (b), (d), and (g) (1995 Kan. Ct. R. Annot. 340) (misconduct). The complaints were heard before a panel of the Kansas Board for Discipline of Attorneys on November 30, 1995. Based upon clear and convincing evidence, a unanimous panel made the following findings of facts and conclusions of law: CASE NO. B6011 Respondent was retained by Jody Kistner to defend her in a civil action in which it was alleged that Kistner owed plaintiff $13,500. Kistner paid respondent $700 to represent her. There was no agreement between Kistner and respondent as to how respondent’s fees were to be determined. Respondent' never furnished Kistner a billing, an itemized statement, or a reconciliation. Respondent failed to appear at a pretrial conference on June 3, 1993. However, respondent did confer with plaintiff’s counsel about an agreed pretrial order that was to; be filed. Neither respondent nor Kistner appeared at .the trial. Respondent did not contact the court or opposing counsel to explain that he was not going to appear at trial. Judgment was granted against Kistner at the trial in the amount of $13,500. Model Rules of Professional Conduct (MRPC) 1.5(b) requires that a lawyer who has not regularly represented a client communicate the basis or rate of the fee before or within a reasonable time after commencing representation. The panel found by clear and convincing evidence that respondent violated MRPC 1.5(b) by not communicating to the client the basis or rate of his fee. MRPC 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a client. The panel found by clear and convincing evidence that respondent failed to appear at a pretrial conference and at trial on behalf of the client and, therefore, failed to act with reasonable diligence. MRPC 8.4(d) states that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. The panel found by clear and convincing evidence that respondent’s failure to inform opposing counsel or the judge of his intent not appear for the client’s trial was prejudicial to the administration of justice. CASE NO. B6053 Kenneth Larson retained respondent to represent him in a post-divorce proceeding. Larson’s ex-wife had requested an increase in child support through an attorney for the Kansas Department of Social and Rehabilitation Services (SRS). Larson paid respondent a retainer of $250 on December 23,-1993. Respondent negotiated an increase in child support with SRS. - Respondent signed the order increasing Larson’s child support without discussing the increased amount of child support with Lar son. The increase of the child support was consistent with the Kansas Child Support Guidelines. Respondent failed to notify Larson that an order had been entered increasing the child support and that a wage assignment had been established. After receiving a paycheck, Larson discovered that his wages had been garnished. Larson immediately attempted to contact respondent. Larson left numerous messages with respondent’s secretary. Respondent never returned Larson’s phone calls. MRPC 1.4 requires that a lawyer keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. The panel found by clear and convincing evidence that respondent failed to keep his client reasonably informed regarding the increase in child support and failed to comply with the client’s request for information. CASE NO. B0694 On May 13, 1994, respondent entered an inpatient drug treatment program at the Valley Hope Rehabilitation Hospital in Augusta, Kansas, as the result of clinical depression as well as extensive use of and an addiction to crack cocaine. While respondent was in treatment at Valley Hope, Mary Jane Moore requested he represent her son, David Moore, who had been charged with criminal possession of cocaine, possession of a firearm by a convicted felon, and failure to have a stamp tax upon a controlled substance. Moore had made his first appearance in the criminal case in Sedgwick County on May 13, 1994, and was to appear next on May 27, 1994. Respondent informed Ms. Moore that he was in the hospital receiving medical treatment and requested a retainer of $3,000 to be made payable to Jon Phillips, respondent’s adult son. Respondent made arrangements for Jon Phillips to pick up the check from Ms. Moore. Respondent was granted leave from Valley Hope Medical facility for a conference with his client, David Moore. Ms. Moore believed that respondent would represent her son at his next appearance on May 27,1994. Respondent failed to appear. Judge Clark informed David Moore that the respondent would not be allowed to represent'him because respondent was receiving inpatient treatment at Valley Hope. After the hearing, Ms. Moore contacted respondent. Respondent informed Ms. Moore he would filé the necessary paperwork to assure that he could represent David Moore. Ms. Moore later called the court and again was informed that respondent could not represent her son. Ms. Moore then contacted other attorneys to represent her son. Ron Lyon agreed to take the case. Lyon’s representation was subject to respondent turning over the $3,000 retainer fee to Lyon. Pursuant to Ms. Moore’s agreement with Lyon, she would be responsible for payment of a retainer fee to Lyon if respondent failed to pay the $3,000. Respondent was released from the hospital on June 13, 1994, and shortly thereafter assured Ms. Moore that she would be refunded the $3,000 within 30 days. Respondent failed to pay the money within 30 days. Subsequently, Ms. Moore attempted to contact respondent on numerous occasions without success. When she was able to contact respondent, respondent promised her that the retainer fee would be refunded. The money was finally paid in late December 1994. Respondent admitted to the panel that he had Ms. Moore make the check payable to his adult son because respondent was in the inpatient treatment program and it would have taken approximately 2 weeks for him to endorse the check. Respondent’s older son was taking care of the household and caring for respondent’s 10-year-old child while both respondent and his wife were in inpatient drug treatment. The retainer was used to care for respondent’s 10-year-old.son, to pay past due mortgage payments, and to pay Valley Hope for respondent’s wife’s treatment. Respondent did not direct his son to place any of the money in respondent’s trust account. MRPC 1.4 requires that a lawyer keep a client reasonably informed about the status of a matter and promptly reply with a reasonable request for information. The panel found by clear and convincing evidence that respondent failed to communicate with Ms. Moore as to the refund of* the $3,000 retainer fee and her requests for information. MRPC 1.15(a) requires that a lawyer hold property of a client in an account separate-from the lawyer’s own property and that complete records of such funds must be kept. MRPC 1.15(b) requires that a lawyer promptly deliver to the client, or third person, any funds or other property that the client or third person is entitled to receive and, upon request by the client or the third person, render a full accounting of such property. The hearing panel found by clear and convincing evidence that respondent violated MRPC 1.15(a) and (b) by commingling die retainer with his personal funds and by failing to pay the money to Mr) Lyon in a timely fashion. MRPC 1.16(a) states that a lawyer shall not represent a client if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. The panel found by clear and convincing evidence that) respondent failed to decline representation in the Moore cas.e due to his physical ¡and mental impairment at the time he was retained. The hearing panel next noted in the same complaint that respondent was scheduled to appear at a hearing in another case in Judge Solomon’s court in Kingman, Kansais, at 9:30 a.m. on November 4, 1994. Respondent failed to appear. Opposing counsel informed the judge that he had been contacted by respondent and told that respondent was having a medical emergency related to a kidney stone. Judge Solomon attempted to contact respondent and left a message that respondent should'call the court’by 11 a.m. to verify the location where treatment was being received. Later that day, respondent teléphoned Judge Solomon’s administrative assistant and informed her that he had passed a kidney stone and was in the emergency room being treated. Later the same day respondent telephoned Judge Solomon and made an appointment for November 7, 1994, to discuss what had occurred. At the meeting, respondent admitted to Judge Solomon that he had lied to opposing counsel and the judge’s administrative assistant. Respondent admitted that .the reason-for Jiis failure, to appear in court on November ■ 4, 1994, was that he had experienced a relapse of his crack cocaine addiction; Respondent enrolled in the Valley Hope Relapse Program 2 days after his meeting with Judge Solomon. Mr. Gard, respondent’s drug abuse counselor, testified that respondent is capable of practicing law, so long as he remains free from substance abuse. MRPC 3.3(a)(1) states that a lawyer shall not knowingly make a false statement of material fact to a tribunal. The panel found by clear and convincing evidence that respondent violated MRPC 3.3(a)(1) by making a false statement to Judge Solomon regarding his whereabouts on the morning of a contested hearing. MRPC 4.1(a) states that in the course of representing a client a lawyer shall not knowingly make a false statement of material fact to a third person. The panel found by clear and convincing evidence that respondent violated MRPC 4.1(a) when he lied to his opposing counsel about his whereabouts the morning of the hearing on November 4, 1994. MRPC 8.4(b), (d), and (g) make it professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s fitness as a lawyer, to engage in conduct that is prejudicial to the administration of justice, and to engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law. The panel found by clear and convincing evidence that respondent extensively used crack cocaine during the spring of 1994. FACTORS IN MITIGATION OR AGGRAVATION In aggravation, the panel found that even though the respondent had substantial experience in the practice of law, respondent exhibited a pattern of misconduct and committed multiple offenses and violations of the Rules of Professional Conduct. In mitigation, the panel noted that the respondent had no prior disciplinary complaints and had cooperated with the investigation, and that his conduct was in part caused by his mental disability and drug dependency. The panel observed that respondent’s good character was substantiated by numerous letters from clients, friends, and other attorneys. The panel noted finally respondent’s efforts in regard to drug rehabilitation. The panel determined that respondent should be indefinitely suspended from the practice of law. The panel recommended that the suspension be lifted so long as respondent continuously meets the following conditions: a. Respondent must be free from drug use for 3 years, to be confirmed by a monthly urinalysis on an unannounced basis. Respondent will pay for the urinalysis, and the reports will be sent to the Disciplinary Administrator’s office. b. Respondent will attend two meetings a week. These meetings shall either be Narcotics Anonymous (NA), Alcoholics Anonymous (AA), or meetings with an after-care counselor. Documentation of attendance at the meetings shall be provided by the leaders of the NA or AA group or the after-care counselor on a quarterly basis to the Disciplinary Administrator’s office. c. Respondent’s law practice is to be supervised in accordance with a plan set forth in Mr. Antonio. L. Ortega’s letter attached to the report. The supervision shall be by Mr. Ortega and Mr. Robert T. Cornwell as modified by the Disciplinary Administrator’s office. There shall be quarterly reports provided to the Disciplinary Administrator’s office on the first business day of April, July, September, and January from Mr. Cornwell and Mr. Ortega. d. Respondent shall provide the necessary waivers of confidentiality for information that is to be transmitted to the Disciplinary Administrator’s office. e. Any indication of non-cooperation as to meeting attendance, practice supervision, drug screen requirements, of any evidence of substance abuse should result in automatic indefinite suspension of respondent’s law license. f. Respondent must pay restitution in the amount of $700 to Ms. Kistner and $250 to Mr. Larson prior to lifting the suspension. g. At the end of 3 years, respondent shall be reevaluated and a recommendation shall be made with respect to these conditions and this sanction. Respondent did not take exception to the final reports, findings, conclusions, and recommendation of the panel. We have reviewed the record and conclude that except for the panel’s finding that the respondent violated MRPC 1.5(a) (commingling a retainer fee and personal funds), its factual findings and conclusions of law are supported by clear and convincing evidence. Respondent has many problems which must be addressed. Respondent is doing so at the present time and appears to be responding to treatment and supervision. As a result: It Is The Order of The Court that upon payment of restitution in the amount of $700 to Ms. Kistner and $250 to Mr. Larson, the imposition of discipline against Daniel H. Phillips shall be and hereby is suspended and respondent shall be placed on supervised probation for a period of 3 years from the date of this opinion. It Is Further Ordered that during the probationary period, respondent’s practice of. law shall be supervised by Antonio L. Ortega and Robert T. Cornwell. Respondent is to allow the supervising attorneys access to his office, his files, his employees, and his trust account, as well as to his treating doctors or health care providers. The supervising attorneys shall periodically, but at least one time per month, check the following: A. status of each case being handled by respondent; B. efficiency and state of respondent’s docketing system; C. management of discovery; D. responses to clients’ requests for information; E. respondent’s trust account; and F. views of the local judges as to their evaluation of respondent’s performance and particularly his meeting of deadlines. On a quarterly basis, the supervising attorneys will report to the Disciplinary Administrator as to respondent’s progress and/or problems observed. Any material deviation from proper practice shall be immediately reported to the Disciplinary Administrator. It Is Further Ordered that during the probationary period, respondent shall continue treatment for his substance abuse problems. He shall continue to regularly attend NA or AA meetings. Respondent shall report on a quarterly basis to the Disciplinary Administrator, providing verification of the above treatment, care, and attendance at the AA or NA meetings, and he shall submit copies of medical reports as directed by the Disciplinary Administrator. The Disciplinary Administrator is authorized to require additional reports at any time. It Is Further Ordered that respondent shall abstain from the use of illegal drugs. The Disciplinary Administrator is authorized to require respondent to submit to random testing for drug use at respondent’s expense. It Is Further Ordered that in the event respondent fails to abide by the conditions set forth herein, a show cause order shall issue to respondent, and this court will take whatever disciplinary action it deems just and proper without further formal proceedings. It Is Further Ordered that this order be published in the official Kansas Reports and that respondent pay the costs of these proceedings.	[ -80, -24, -55, -49, -120, 97, 62, 40, 113, -45, 97, 119, -19, -49, 1, 63, 98, 61, -112, 107, 71, -74, 110, 96, 102, -13, -8, -47, -72, 95, -3, -99, 73, 48, -126, 85, 70, -126, -43, 24, -122, 1, 9, -32, -45, -127, 48, 121, 23, 15, 53, 60, 115, 42, 61, 107, 72, 56, 61, -17, -47, -47, -103, -107, 127, 22, -93, 4, -98, -125, -44, 46, -104, -68, 2, 72, 115, -74, 34, 100, 79, -87, -20, 54, 98, 35, 25, -127, -88, -99, 110, 53, -100, 38, -103, 73, 67, -115, -90, -100, 101, 22, 39, -4, -12, 12, 57, -20, 15, -117, -42, -109, 31, 118, -50, -126, -17, 2, 36, 17, -116, -10, 94, -41, 50, 31, -102, -80 ]
Per Curiam,-. This is an original attorney discipline proceeding filed by the Disciplinary Administrator against respondent Walter C. Williamson, an attorney licensed to practice law in Kansas, whose last registration address is in Wichita. A formal complaint alleging breach of fiduciary duty and failure to cooperate in the disciplinary investigation was filed against respondent. A hearing on the complaint was held by a hearing panel of the Kansas Board for the Discipline of Attorneys on January 17, 1996. Respondent appeared pro se and was allowed to file an answer out of time. The report, findings, and recommendations of the panel were filed with the Kansas Supreme Court on March 5,1996. Respondent did not file exceptions to the facts as determined by the hearing panel. The facts as determined by the hearing panel are that on July 26, 1982, a petition for probate of will was filed in the estate of Anita Williamson. In the petition it was requested that respondent be appointed executor of the estate. On August 24, 1982, the will in the Anita Williamson estate was admitted to probate, and respondent was appointed executor of the estate. Respondent was not required to post a bond. Richard Williamson, a son; Sarah Snow, a granddaughter; and respondent, a grandson, were the sole heirs in the Anita Williamson estate. Richard Williamson died in June 1993. Thomas Scott Williamson and Shari Nichols are heirs and legatees of Richard Williamson. On September 16, 1993, approximately 11 years after respondent had been appointed executor of the estate, Thomas Williamson and Shari Nichols filed a verified petition to remove Walter C. Williamson as executor and to appoint Thomas Williamson and Shari Nichols as administrators de bonis non C.T.A. in the Anita Williamson estate. The verified petition alleged that respondent had failed to perform the duties required by law of the executor of an estate. Specifically, it was alleged that respondent had not acted with diligence in fulfilling his duties as executor and had failed to distribute all of the assets of the estate. On October 6, 1993, respondent was ordered to file an inventory and accounting of the estate by October 27, 1993. The verified petition was heard on January 7,1994. Respondent appeared pro se. The court held that respondent (1) had failed to perform his duties under law as the executor, (2) was not diligent, and (3) had failed to administer the assets of the estate. Respondent was removed as executor. At the time of respondent’s removal as executor, he had failed to file an inheritance tax return or an accounting by October 27, 1993. Respondent did file an inventory on January 7, 1994, which indicated total estate assets of $54,000. On October 21, 1994, a civil action was filed on behalf of the Anita Williamson estate beneficiaries against respondent to recover $83,000 in unaccounted-for estate assets. Respondent was served but did not file an answer to the beneficiaries’ petition. A default judgment was taken against respondent on December 30, 1994. The judge found that respondent (1) had breached a fiduciary duty to the estate by failing to account for $83,481.42 in estate assets and (2) as executor of the estate had converted estate funds to his own use by false pretenses, false representation, or actual fraud. The judge entered judgment against respondent. The judgment was doubled pursuant to K.S.A. 59-1704 to $166,962.84. Respondent’s defense to the hearing panel for his actions as executor was that he was given the real estate and certain stock by the decedent, Anita Williamson, before her death, which he claims is shown by the writing of respondent’s exhibit 3. The panel did not believe that such gifts were made by the decedent and did not believe the testimony of the respondent because: “(a) ... no inventory was filed by respondent in the estate of Anita Williamson until January 7, 1994, which inventory was duly signed by the respondent. [T]his inventory listed this real estate as an asset of the estate of Anita Williamson, and not the property of respondent. Further, no deed was ever signed and/or recorded by Anita Williamson deeding the real estate to the respondent. “(b) The decedent, Anita Williamson, owned certain stocks at the time of her death, which certificates were solely in the name of the decedent. Exhibit ‘F’ of the Board’s exhibits shows that respondent, after being appointed as Executor of the estate of Anita Williamson, had these stocks transferred to his name as executor of the estate, which, of course, indicates that he was not the owner of the stock prior to the death of Anita Williamson. “(c) . . . the respondent had the opportunity to put forth his defense of the ownership of the real estate and stocks, which were involved in the estate of Anita Williamson upon several prior occasions than this hearing, to wit: At the time of his removal as Executor of the estate; at the time of legal action against him by Shari Nichols and Thomas Scott Williamson . . . ; on several occasions during the investigation of this complaint by members of the Sedgwick County Bar Association and the Kansas Board for Discipline of Attorneys. It is noted that at no prior occasion did he claim that the real estate and stocks belonged to the respondent prior to the death of Anita Williamson.” The hearing panel found by clear and convincing evidence that respondent violated the following rules: MRPC 1.3 (1995 Kan. Ct. R. Annot. 257) (diligence), MRPC 1.15 (1995 Kan. Ct. R. Annot. 294) (safekeeping property), MRPC 8.4(c) and (d) (1995 Kan. Ct. R. Annot. 340) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; engaging in conduct prejudicial to the administration of justice), Rule 202 (1995 Kan. Ct. R. Annot. 189) (commission of civil wrong), and Rule 207 (1995 Kan. Ct. R. Annot. 202) (failing to properly respond to the disciplinary administrator or investigating attorney). The hearing panel requested from the parties any facts for consideration for either aggravation or mitigation of the complaint against respondent. As aggravating factors the panel found a dishonest and selfish motive, a pattern of misconduct, a bad faith obstruction of the disciplinary process, and a refusal on the part of respondent to acknowledge any wrongful conduct. The panel further found that respondent had substantial experience in the practice of law, had complete indifference to making restitution, and had essentially stolen the assets of the estate of Anita Williamson. In mitigation, the panel found that respondent has an absence of a prior disciplinary record. The hearing panel recommended that respondent be disbarred from the practice of law by the Kansas Supreme Court. The panel further recommended that respondent pay the costs of the disciplinary proceeding. We have noted previously that mitigating factors will not excuse violation of the Model Rules of Professional Conduct and are to be considered only when determining the nature and extent of the discipline to be administered. Factors to be considered in assessing punishment in attorney discipline cases include whether restitution has been made, previous violations or absence thereof, previous good character and reputation in the community, present or past attitude as shown by the attorney’s cooperation during the hearing and his or her acknowledgement of the violation, support from friends and members of bar, any statement by a complainant expressing satisfaction with restitution made and requesting no discipline, and the personal misfortune of the attorney if such misfortune has contributed to a violation of the model rules. See In re Daily, 248 Kan. 158, 167, 804 P.2d 993 (1991). Rule 207(a) imposes a duty on each lawyer subject to the jurisdiction of the Kansas Supreme Court to cooperate with and respond to the inquiries by the state disciplinary authorities at all stages of the proceedings, even when the lawyer is the subject of a disciplinary investigation. The language of Supreme Court Rule 207(a) is simple, straightforward, and unambiguous. It imposes the duty of cooperation on every lawyer under this court’s jurisdiction, with one exception. The one exception, the right against self-incrimination, is contained in Rule 223 (1995 Kan. Ct. R. Annot. 236). See State v. Savaiano, 234 Kan. 268, Syl. ¶¶ 1, 2, 670 P.2d 1359 (1983). We hold that the findings and conclusions of the hearing panel are supported by clear and convincing evidence. After a careful review of the record, a majority of this court accepts the recommendation of the disciplinary panel that respondent be disbarred from the practice of law in Kansas. It Is Therefore Ordered that Walter C. Williamson be and he is hereby disciplined for violations of MRPC 1.3, 1.15, 8.4(c), and 8.4(d), and Rules 202 and 207. It Is Further Ordered that Walter C. Williamson be disbarred from the practice of law in the State of Kansas effective July 12, 1996. It Is Further Ordered that Walter C. Williamson shall comply with Supreme Court Rule 218 (1995 Kan. Ct. R. Annot. 222) and shall pay the costs of this action. It Is Further Ordered that this order be published in the official Kansas Reports.	[ -112, -20, -51, 28, -120, 97, -70, 42, 87, 115, -9, 85, -17, -50, 72, 107, 115, 41, 81, 105, 99, -78, 114, -16, 94, -77, -8, -41, 51, 109, -12, 23, 73, 48, -118, -43, 70, -126, -63, 28, -116, 1, 9, -27, 91, -128, 48, 99, 21, 29, -15, -66, -13, -85, 53, 102, 72, 40, -3, -20, 92, -127, -115, -108, -6, 22, -78, -123, -68, -83, 88, 59, 72, 56, 32, -88, 51, -74, 34, 116, 79, 9, 41, 102, -30, 51, 25, 37, -80, -120, 15, 48, -99, 39, -45, 25, 99, 5, 20, -97, 117, 80, 39, -4, -20, 77, 61, -88, 14, -49, -42, -127, 31, -20, -116, 26, -22, -96, 34, 81, -33, -32, 95, -121, 113, 27, -42, -94 ]
Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Ronald R. Gooding, respondent, a Topeka attorney, alleging multiple violations of the Model Rules of Professional Conduct (MRPC). A formal hearing before the panel of the Board for Discipline of Attorneys was held on October 24, 1995. Respondent appeared in person and by counsel. Respondent and the Chief Deputy Disciplinaiy Administrator offered numerous exhibits, which were admitted by agreement of the parties. The hearing panel entered the following findings of fact, conclusions of law, and recommendations: “FINDINGS OF FACT “1. Ronald R. Gooding, is an attorney at law, Kansas Attorney Registration No. 10250. His last registration address with the Clerk of the Appellate Courts of Kansas is 817 SW 6th Street, Topeka, KS 66603. The respondent is a graduate of Washburn Law School in the class of 1979 and after being admitted to the bar in 1979 he practiced law in Topeka as well as being a licensed real estate broker. “2. On June 22,1989, the Shawnee County Sheriff Department, Drug Enforcement Unit, executed a search warrant at 2916 S.W. 17th Street in Topeka, KS. That address was the residence of the respondent and the respondent was the sole occupant at the time of the search. The scope of the search warrant was for cocaine and cocaine sales evidence. The following items were seized in the search: (A) A brown envelope containing four plastic baggies that each contained approximately one (1) ounce of what tested to be cocaine. (R) $2,900.00 in cash in $50 and $100 bills. (C) A white canvas duffle, bag in which was found a Deering Precision Instruments Cocaine Processing Unit. (D) A set of O’Haus triple beam balance scales. (E) A small amount of green-brown vegetation which tested positive for marijuana. (F) Three (3) plastic bags containing Sno Seals. (G) Medical instruments and pharmaceutical drugs which included a bottle of sodium chloride and a container of morphine sulfate. (H) A bottle of Mannitol. • > (I) A brown grocery sack which contained three (3) lárge plastic baggies of white powder. The powder tested positive for cocaine. (J) A bottle of Inositol and a grinder. (K) Five (5) paper folds which contained white powder that tested positive for cocaine. (L) An additional quantity of marijuana and a chunk of green-brown substance which tested positive for tetrahydracanriabinoids (hashish). ’ (M) A prescription bottle containing xanax tablets (the prescription was made out to someone other than the respondent). (N) Numerous pieces of paraphernalia including snorting tubes, mirrors, a dinner plate with white powder substance on it, three (3) bowls located in the microwave oven which contained contents which tested.positive for cocaine. “3. Subsequent to the search the respondent was charged by the Shawnee County District Attorney’s Office with thirteen (13) counts in a criminal complaint. On June 22, 1989, a complaint was docketed for investigation by the Disciplinary Administrator’s Office as a result of the respondent’s arrest. On June 29, 1989, the respondent requested transfer to disability inactive status pursuant to Supreme Court Rule 220(c). The respondent stated he was suffering from a current disability due to drugs or intoxicants which made it impossible for him to adequately defend himself in the disciplinary process. On June 30, 1989, the Kansas Supreme Court placed the respondent on disabled inactive status. “4. Prior , to the respondent’s arrest he had been involved in a very serious automobile accident on March 20, 1989 which resulted in his hospitalization for two weeks and several months of being bedridden at home. “5. After two preliminary hearings and one mistrial respondent entered into a stipulation with the Shawnee County District Attorney’s Office which resulted in the dismissal of twelve of the thirteen criminal counts. The first stipulation was presented to Shawnee County District Judge Jackson who refused to accept the stipulation on the basis that it did not set forth a case of guilt and he would be unable to find the respondent guilty on the stipulation. Respondent’s attorney then moved for acquittal which motion was overruled and a second stipulation was entered into and the court found the respondent guilty of possession of narcotic drugs, Class C felony. “6. On April 12,1991 the respondent was sentenced. The court sentenced the respondent to the custody of the Secretary of Corrections for- a term of not less than three (3) years or not to exceed ten (10) years. The court noted that the amount of cocaine possessed by the respondent exceeded the limits set by K.S.A. 65-4127(e). “7. On September 5,1991 the respondent filed a Notice of Appeal in the Court of Appeals of the State of Kansas; The issue raised by the respondent on appeal were that the trial court erred in overruling the respondent’s: (1) pretrial suppression motions, (2) pretrial motion based on double jeopardy, (3) pretrial motion regarding prosecutorial misconduct and, (4) pretrial motion dismissed based on speedy trial ground. “8. On September 4, 1992 the Kansas Court of Appeals affirmed the respondent’s conviction for possession of cocaine and on November 16,. 1992 the Kansas Supreme Court denied the Petition for Review filed by respondent and as a result respondent was incarcerated from December 8, 1992 until December 15, 1993. “9. On December 4, 1992 the respondent filed a Petition for Writ of Habeas Corpus in the United States District Court for the District of Kansas (Gooding vs. Stotts, et al, 92-CV-3456). On June 15, 1994 the United States District Court Judge Dale E. Saffels granted the respondent’s Petition for Writ of Hábéas Corpus and released the respondent from his conviction and sentence. Judge Saffels held that the respondent’s constitutional right to be protected from prosecution for the second time for the same crime had been violated by the State of Kansas. It was determined that the jeopardy had attached when the initial stipulation of facts was submitted to the trial court by the prosecution and the respondent. The court held upon the finding of the trial court that the stipulation was legally insufficient to sustain a conviction, the respondent was acquitted. On July 15, 1994 the State of Kansas appealed Judge Saffels’ decision to the United States Court of Appeals for the Tenth Circuit and on May 11, 1995 the United States Court of Appeals affirmed the decision of Judge Saffels. “10. The respondent in his response to the formal complaint admitted that the set of O’Haus triple beam balance scales, the Deering Precision Instruments Cocaine Processing Unit and the other items found in the white canvas duffle bag were his as was the residue found on the plate and the bowls in the microwave oven and admitted that he is an alcoholic and cocaine addict but denied that he was owner of the large amount of cocaine found in the search of the premises. “11. The respondent had started using alcohol and cocaine while he was in law school at Washburn University in 1979 and continued to be a user up until the time he was arrested on June 22, 1989. “12. The respondent engaged in illegal conduct including the possession of illegal substances and paraphernalia. • ■ “13. On September 9,1994 in Bar Docket No. 10250 in the Matter of Ronald R. Gooding, Justice Allegru'cci ordered that the disciplinary proceedings against the respondent be resumed and an Order to Show Cause was entered effective the 27th day of January 1995 again by Justice Allegrucci lifting the suspension of respondent noting that respondent’s conduct did not arise out of his practice of law or cause injury to a client. “CONCLUSIONS OF LAW “Based upon the exhibits and evidence presented to the panel, the panel finds that the respondent has violated by clear and convincing evidence, the following disciplinary rules, to wit: A. MRPC 8.4(b) Committed criminal acts [that] reflect personally on lawyer’s honesty, trustworthiness or fitness of the lawyer in other respects, as evidenced by the testimony of respondent that he has possessed and used an illegal substance for a prolonged period in excess of ten (10) years. B. MRPC 8.4(d) Engaged in conduct that is prejudicial to administration of justice in that respondent admittedly violated the criminal statutes which as a lawyer he had sworn to uphold. C. MRPC 8.4(g) Engaged in any conduct [that] adversely reflects on a lawyer’s fitness to practice law again by respondent’s possession and use of an illegal substance for extended period of time in violation of the criminal statute of the State of Kansas which the respondent had sworn to uphold when he was sworn in as a lawyer in 1979. “MITIGATING OR AGGRAVATING CIRCUMSTANCES “This panel then heard evidence of mitigating and/or aggravating circumstances both from the Deputy Disciplinary Administrator Mr. Hazlett and from the Respondent and his counsel Mr. Rork. Respondent presented the panel with a notebook with Exhibits A through N entitled Mitigating Circumstances. “AGGRAVATION “Factors which may be considered an aggravation by the hearing panel include: A. Prior disciplinary offenses — None. B. Dishonest or selfish motives — None. C. Pattern of misconduct. Respondent’s use of an illegal substance, cocaine, over a ten (10) year period would evidence a pattern of misconduct. D. Multiple Offenses — Again the continued use of cocaine by the respondent would evidence a pattern of multiple offenses. E. Bad Faith Obstruction of a Disciplinary Process — On June 29, 1989 the respondent requested a transfer to disability inactive status pursuant to Supreme Court Rule 220(c) and on June 30, 1989 the Kansas Supreme Court placed respondent on disabled inactive status and suspended further disciplinary proceedings. The respondent by all accounts fully cooperated with the disciplinary process. F. Submission of false evidence, false statements or other deceptive practices. No evidence. G. Refusal to acknowledge wrongful nature of conduct. No evidence. H. Vulnerability of victim — None. I. Substantial experience in the practice of law — Not relevant. J. Indifference to making restitution — Not applicable. K. Illegal conduct including that involving the use of controlled substances— Again this is the basis of the complaint. “MITIGATION “Factors which may be considered in mitigation by the hearing panel include: A. Absence of a prior disciplinary record: Respondent had no prior disciplinary problems. B. Absence of a dishonest or selfish motive: Not applicable. C. Personal or emotional problems if such misfortunes . . . contributed to the violation of the Model Rules of Professional Responsibility: Evidence presented by the respondent indicated that he had severe personal and emotional problems particularly in 1984 when he was involved in a divorce and his young daughter was diagnosed with cancer in July and subsequently died in October of that year. D. Timely good faith effort to make restitution: Not applicable. E. Present and past attitude of the attorney as shown by his cooperation during the hearing and his full and free acknowledgement of transgressions: The panel found the respondent had a good attitude and fully cooperated during the investigation and the hearing. F. Inexperience in the practice of law: Not applicable. G. Good character and a reputation in the community including any letters from clients, friends and lawyers in support of the character and general reputation of the attorney: The respondent in his mitigation notebook furnished the panel with copies of letters from a number of lawyers including John Ostrowsld of the McCullough Wareheim firm; Mark B. Rockwell, practicing attorney in Denver, Colorado; David W. Scott of Topeka; Dwight Cowen of Topeka and J. Richard Lake of Holton. In addition respondent presented letters from David Jensen of the Psychotherapy Services in Topeka; from David Pladson from the Clinical Counseling Recovery Services in Topeka; from Robert E. Jacoby III, M.D. respondent’s family doctor; from Eric A. Voth, M.D. of the Cotton-O’Neil Clinic; and letters from respondent’s clients Pamela G. Mayo; Michael W. Hammond, State Parole Officer and from Don Kern; Mr. & Mrs. David A. Nelson and from Leslie Guild Moriarty, all of which are contained in Exhibit F of the respondent’s Mitigating Circumstances notebook. H. Physical Disability: Not applicable. I. Mental disability or chemical dependency including alcoholism or drug abuse when: (1) There is medical evidence that the respondent is affected by a chemical dependency or mental disability: There was certainly evidence that the respondent had a chemical dependency particularly from and after the summer of 1984. (2) Chemical dependency or mental disability caused the misconduct: Evidence was that chemical dependency did cause the multiple offenses. (3) Respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and ' • ■ ? (4) The recovery arrested the misconduct and recurrence of that misconduct is unlikely. The evidence from the testimony of respondent’s witness John L. Sims would indicate that the respondent is a recovering alcoholic and cocaine addict; that the man has been free of substance abuse since his arrest on June 22, 1989 and has been very active in attending and participating in Alcoholics Anonymous and Cocaine Anonymous groups; has undergone numerous urine tests over the period and they have all been riegative. J. Delay in disciplinary proceedings: Not applicable. K. Imposition of.other penalties or sanctions: Not applicable. L. Remorse: Respondent evidenced what the panel believed to be genuine remorse over his past conduct which resulted in his losing his home, his office building, his standing in the legal community and his ability to earn a living. M. .Remoteness of prior offenses: Not applicable. N. Any statement by the complainant expressing satisfaction with restitution: Not applicable. “ ‘•RECOMMENDATIONS “It was the recommendation of the Disciplinary Administrator that the respondent be disbarred from the practice of law because of respondent’s admitted violation of Class C felony statute over an extended period of time. Mr. Hazlett referred to the Standards for Imposing Lawyers Sanctions of the American Bar Association Center for Professional Responsibility, particularly the section of Aggravation and Mitigation. The panel studying the ABA Standards looked at Section 5 Violations of Duties Owed to the Public and particularly 5.12 which indicates suspension is’generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice and out of the commentary to that section it is noted that although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate a lack of those characteristics relevant to the law practice. “The panel is of the opinion that the offenses of possession of a controlled substance over á lengthy period of time is a serious offense that would normally result in suspension; however, in this case the respondent has been free of alcohol and substance abuse since his arrest in June of 1989; he has been successful in rehabilitating himself with the aid of Mr. Sims and a number of other counselors. He has become a leader in several outpatient programs in counseling and as a temporary sponsor for addicts that aré recently into recovery. Respondent’s counsel pointed out the Bradley J. Smoot matter which involved possession of cocaine who received a suspended one year sentence from the United States District Court there in Topeka and which, in that matter, the panel found that there had been a violation of then disciplinary rule 1.102(a)(5) concluded that his conduct did not adversely reflect upon his ability to practice law nor did his conduct reflect a moral turpitude making him unworthy to practice and recommended public censure, and the court after carefully reviewing the- record concurred with the conclusions and recommendations of the majority of the panel and ordered published public censure. “Respondent also pointed out the matter of Walter (Pete) Robertson, 256 Kan. 505, where our present Disciplinary Administrator Mark F. Anderson argued the matter on behalf of the respondent. In that matter the respondent was charged with several felonies for the purchase of cocaine from a friend who tinned out to be an undercover agent for the police and he was found not guilty by a jury on the basis of entrapment. At a disciplinary hearing the respondent, as in thé present matter, did not deny any of the allegations in the complaint and was given published public censure. • “It is the recommendation of this panel that the penalty imposed on respondent be published public censure. We believe respondent has paid the price, that he is well on his way to recovery and that the profession will be well served by respondent’s continued ability to practice his profession. In addition to the public censure the respondent, with the aid of the disciplinary administrator’s office should contact die deans of our two law schools and volunteer to speak to the ethics classes about his experience with alcohol and drugs. Respondent’s supplier during 1988 and 1989 was a Washburn law student by the name of Cochran who bragged that he was also supplying cocaine to twenty law students. “It is the further recommendation of the panel that the costs of this action in the sum of $_be taxed against the respondent when determined by the Disciplinary Administrator’s office.” In his response, respondent takes no exception to the report, the mitigating or aggravating circumstances, or the recommendations of the panel and requests that this court adopt the report as submitted. We find that there is clear and convincing evidence establishing the facts as. found by the panel and adopt the same. We further find that there is clear and convincing evidence establishing that respondent violated MRPC 8.4(b), (d), and (g) (1995 Kan. Ct. R. Annot. 340). It is obvious the panel found extensive mitigating factors and was impressed with the remedial actions taken by the respondent. We respect the panel’s determination in this regard. However, all members of the court view respondent’s conduct as being more egregious than conduct where published censure is imposed. All members agree that the violations are a severe breach of the Model Rules of Professional Conduct and a minority of this court is of the opinion that respondent’s violations warrant suspension from practice or disbarment. Nonetheless, based upon the following factors, a majority of the court is of the opinion that discipline against respondent should be suspended and that he should be placed on probation for 2 years from the date of this opinion: (1) Respondent has not been convicted of a felony violation in the use of drugs; (2) respondent has been free of substance abuse since his arrest on June 22, 1989; (3) respondent’s recovery from his chemical dependency and his mental disability has been demonstrated by a meaningful and sustained period of successful rehabilitation; (4) respondent has shown continued commitment to treatment through professional counseling, alcoholics anonymous, and cocaine anonymous groups; (5) respondent has received punishment by reason of his incarceration from December 8, 1992, until December 15, 1993; and (5) all other mitigating factors contained in the panel report. It Is The Order Of The Court that imposition of discipline against Ronald R. Gooding be and hereby is suspended and he is placed on probation for 2 years from the date of this opinion. It Is Further Ordered that respondent not violate the Model Rules of Professional Conduct and that in addition to meeting his continuing legal education requirements, respondent shall continue attending and participating in alcoholics anonymous and cocaine anonymous groups for a period of 2 years. Respondent shall furnish a report to the Disciplinary Administrator eveiy 6 months showing proof of his attendance. It Is Further Ordered that in the event respondent fails to abide by the conditions set forth herein, a show cause order will be issued to respondent and this court will take whatever disciplinary action it deems just and appropriate, including suspension or disbarment, without further formal proceedings. It Is Further Ordered that this order be published in the official Kansas Reports and that the respondent pay the costs of these proceedings.	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The opinion of the court was delivered by Larson, J.: Shari Webber appeals her convictions of one count of aiding and abetting first-degree murder, K.S.A. 21-3401, and one count of conspiracy to commit first-degree murder, K.S.A. 21-3302; 21-3401, in connection with the March 26, 1994, shooting of her husband, Scott Webber, by Shari’s boyfriend, Victor Bansemer. Shari was given a hard 40 sentence. Scott’s body was found on the floor of his trailer house in Hugoton, Kansas, on March 28, 1994. The shots resulting in his death were fired from a distance of 2 feet or less. Evidence presented at trial showed that Shari wanted Scott killed to resolve an ongoing custody dispute and avoid the accompanying legal fees. Toward that end, the State introduced evidence showing the status of Shari’s custody battles with both Scott and her ex-husband, Jeff Diseker, regarding her children Dalyn and Chloe. Shari sued Scott for divorce on January 10, 1994. An order placed the couple’s child in Shari’s custody and placed supervisory conditions on Scott’s visitation. The restrictions stemmed from Scott’s alleged use of marijuana. On January 31,1994, Scott moved to modify the visitation restrictions, which were removed at a February 2, 1994, hearing. Diseker had been pursuing a motion to change the custody of a minor child from his marriage with Shari since late 1993. Earlier in 1993, Diseker and Shari had a dispute over visitation. Diseker’s March 17, 1994, motion to modify custody was set for hearing on March 25. Police arrested Bansemer for the murder of Scott on May 18, 1994, based on statements he had made to a friend, Esther Cox, which she reported to law enforcement officers. In one interview, Cox reported that Bansemer had told her that Shari said she would kill Scott if Bansemer would not. During interviews with law enforcement officers, Shari denied any knowledge of the circumstances surrounding her husband’s death, denied having dated Bansemer, denied they were sexually involved, and denied they had ever been engaged. Evidence from numerous sources at trial contradicted these claims. Two days after his arrest, Bansemer told his lawyer the murder had been a joint venture between himself and Shari. After Bansemer informed the county attorney about Shari’s involvement in a statement made on June 27, 1994, Bansemer was offered a plea bargain that allowed him to plead to second-degree murder in exchange for his testimony against any coconspirators or other participants, rather than face first-degree murder charges with the possibility of a hard 40 sentence. Conditions of the plea bargain required Bansemer’s story to be truthful and consistent. The county attorney assured Bansemer that the plea bargain would not be changed even if his truthful testimony differed from his earlier accusations against Shari. At trial, Bansemer provided a detailed description of how Shari had become his lover, promised to marry him, helped devise elaborate plans, and encouraged and persuaded him to kill Scott. He further testified that after he killed Scott, Shari turned cold, rejected him, and cut off their once-passionate relationship. At trial, Bansemer testified he first met Shari at a pet shop she operated with her husband. He knew of their pending divorce and that they were closing their business. He agreed to give Shari a free chicken dinner at the place he worked in exchange for the name of a bird breeder. On January 13,1994, they had that dinner with Shari’s two children and discussed her problems with her husband and the divorce. Their relationship developed quickly. Bansemer helped Shari move to her mother and stepfather’s farm on January 22, and they became sexually involved at about that time. On January 30 they told' Shari’s parents of their plans to marry and Bansemer moved his camping trailer into a bam on the farm. Bansemer testified that Shari told him the February 2, 1994, custody hearing had not gone as planned and she was upset. On February 4, Bansemer, Shari, and her stepfather discussed the hearing. Shari suggested, “Well, why don’t we just kill him,” and asked, “Well, if we could get him between Hugoton and Ulysses, how would we go about it?” The next day Scott came and picked up their child. That evening, Shari inquired again about killing Scott. Bansemer and Shari then discussed possible scenarios, with Shari suggesting shooting Scott. On the following Friday, Shari raised the subject again. She and Bansemer discussed how to disable Scott’s car in a remote place so they could give him a ride, kill him, put his body in a river, and cover it with lime to cause decomposition. They rejected this particular plan as impractical. Bansemer attributed Shari’s renewed interest in the crime to the stress of the ongoing custody battle but felt her interest was genuine. Shari had told him, “I want to kill him,” and “I want Scott killed.” On the evening of February 16, Shari brought up another plan. She suggested killing Scott in front of the home of one of his friends so that the crime would look drug-related. She drew Bansemer a map showing how it could be accomplished. Bansemer rejected the plan as not feasible. The following Tuesday evening, Shari brought up murdering Scott again. Shari and Bansemer discussed killing him at work, but again decided it was impractical. That Friday she asked about car bombs, but Bansemer felt the risk of injuring others was too high. In the ensuing days, Shari talked about other places to kill Scott, including at a halfway house, in his house (to which Shari drew Bansemer a map and floorplan), and outside a divorce seminar. They also discussed killing him with a guitar string. Shari and Bansemer practiced having Bansemer imitate the voice of a local pastor so he could trick Scott into opening the door of his house. After a divorce seminar on March 10, Shari came home upset and explained that the custody battle was going to escalate and that Diseker was going to get involved. The next day Shari said, “Scott’s going- to get all three husbands into this custody battle. And the second husband’11 probably lie about me. And it’ll just make it that much easier for Jeff to go for custody of the first one. I want to kill Scott Webber.” On March 14, Shari.suggested killing Scott when he came to pick up their son for visitation the coming weekend and making it look like self-defense. On March 17, she again suggested killing Scott in his home. Shari suggested the killing take place on prom night since the police would be busy. Shari, talked about how Bansemer would go to Scott’s house by bicycle, what he .would wear, what weapon he would use, the layout of the trailer park, and imitating the pastor. Shari again drew maps and helped Bansemer practice the plan and develop an alibi.. The next day, Shari suggested moving up the schedule one day to March 25 because she would be at a slumber party with her children and therefore have a better alibi. The planning continued for the next few days. At the time Bansemer was living at the farm, he was preparing a foundation for a prefabricated house Shari’s parents were helping her buy. Shari became worried, about her growing legal fees and the-risk she would lose this new house if she lost custody of her children. Bansemer testified Shari said, “You or me do it. I want it, I want to get him. this weekend. You either show me how to do it, and I’ll do it, or you do it. But he’s not going to raise Dalyn.” They also promised to protect each other in the subsequent investigation.- On March 25, Shari assured Bansemer that killing Scott was what she wanted. That evening he drove by Scott’s house several times but did not feel he could kill him. The next day Shari again assured Bansemer she wanted Scott killed and would do it herself if he would not. At abo.ut 7 p.m. she told him, “You need to go.” ■ Bansemer drove by Scott’s house, but Scott was not home. At about 9 p.m. he called Shari, who told him, “We’ve got to get him tonight.” Bansemer retumed to Scott’s house by bicycle and, after a brief affray, shot and killed. Scott. .When asked at trial what his intention was when he walked to the door Bansemer replied, “To kill Scott Webber.” Bansemer left Scott’s house after the shooting, flattening the tires on Scott’s car as he left because he was upset and thought it might draw attention away from Shari, who stood to inherit the car. At trial, Bansemer admitted he had told different stories about the murder, but claimed he was testifying to the true nature of the events. On cross-examination, Shari’s counsel pointed out where Bansemer’s testimony since the plea bargain differed from the story he had told before and also where his preliminary hearing testimony differed from that offered at trial. Shari’s counsel also pointed out that Bansemer had a chronic alcohol problem and had been drinking heavily from March 25 until his arrest. The prosecution also introduced evidence that Shari fled Kansas following Bansemer’s May 18 arrest. Six days after the arrest, Shari purchased a cellular phone, telling the sales clerk she was planning a trip to Arkansas to leave one of her children with a parent and then California to leave another child. On May 26, Diseker picked up Chloe for visitation for the summer. Shari was not home when Diseker arrived. Chloe told Diseker that she had gone to bed with Dalyn in the same bed the night before, but awoke to find Dalyn and her mother gone. Donna Diseker, Jeff’s wife, testified that she felt at the time that Shari was not planning see Chloe again because she had not left a detailed inventory list that had always been very important to her when the Disekers had physical custody of Chloe. During the night of May 25, Shari took Dalyn and left Kansas. She went to Texas and checked into a motel, using the name of Kathy Jays. While there, she dyed her hair. Shari proceeded to Louisiana, where she again checked into a motel under the name of Kathy Jays. There she paid for lodging for a month and took out a newspaper advertisement seeking a child-care job. She told people at the motel that she was from Dodge City, Kansas, and would be staying for one or two months and then returning to Kansas. A man by the name of Arlen Terry responded to Shari’s newspaper advertisement. Shari identified herself as Kathy Jays and told Terry her husband had died in an automobile accident before she left Kansas and she planned to return in August to begin a voca tional education program. Later she told Terry her real name and said she was using the assumed name on the advice of her lawyer. Upon the advice of a friend, Terry got Shari’s driver’s license number so that he could find out if there were any problems in her background. When he called the sheriff’s office in Hugoton he was told of her suspected involvement in Scott’s murder and that the police would come to Louisiana to pick her up. When he confronted Shari with what he knew, she explained that she feared the sheriff was involved in Scott’s death and was now harassing her. Together, Shari and Terry travelled on to Florida. Once in Florida, Terry came to realize Shari had been lying to him, and he told her she would have to leave. Terry persuaded Shari to return to Kansas. Following her return, Shari was arrested on June 29, 1994, after answering a subpoena to appear at Bansemer’s preliminary hearing. At the time, she was sitting in a chair with her purse in her lap. The police subsequently inventoried the contents of the purse and discovered $4,113 in cash, which fueled speculation she was planning to leave Kansas again. Shari testified the money was from checks that had accumulated while she was out of state and which she had cashed at her parents’ grocery store. While in jail awaiting trial, Shari developed a relationship with another prisoner, Nathan Rawlins, through a ventilation duct. She told him she might do some time for conspiracy, but not for the murder charge because she had not done the murdering. During Shari’s incarceration, a female prisoner, Beverly Romero, was transferred to the jail to share her cell and report any incriminating statements Shari might make. Shari told her about the plans with Bansemer to kill Scott, particularly a plan involving a car bomb. Shari told her the plan to kill Scott came about because he was an obstacle to Bansemer and Shari’s relationship and Scott was causing custody problems. The State introduced the testimony of Jerry Diederich to counter Shari’s contention that she had no involvement in Scott’s death, unless Bansemer had taken some off-handed remark she had made about Scott out of context. Diederich testified that he did some work for Shari during the time she was involved in a custody battle with Disek'er over Chloe in 1991. Shari asked him if he knew anyone who would be willing to murder Diseker. At the time, Diederich was surprised by how serious Shari seemed to be about the question. The court immediately gave the jury a limiting instruction. Shari testified her conversation with Diederich had been a joke. Shari testified in her own defense. Her explanation of her relationship with Bansemer differed markedly from his description, but also differed from what law enforcement officers testified she had earlier told them. She testified that after their chicken dinner at Bansemer’s place of employment, they had a brief but torrid love affair during the month of February. She testified Bansemer volunteered to pour the foundation for her house and was permitted to eat dinner with her and her parents and move his camper into the bam as compensation. He finished the foundation on March 1 and moved back to town on March 14. She testified that she had shared her frustrations about Scott with Bansemer and may have said something about hoping to see Scott’s picture on the back of a milk carton and other similar offhand comments. She acknowledged discussing marriage with Bansemer, but denied that they were ever engaged or that they had exchanged engagement rings, as Bansemer and Shari’s stepfather had claimed. Shari explained her apparent flight as a bird-watching vacation in Louisiana. She said she had planned to go to California, but changed her mind. She did not tell people she had changed her mind so she would not be followed. She explained she feared harassment by local law enforcement, thinking the sheriff was involved in Scott’s murder. When interviewed by the KBI and ATF outside the presence of Stevens County law enforcement officers on April 21, 1994, Shari did not mention her concern that the sheriff was involved. Shari testified that before leaving Kansas, she contacted her attorney and asked whether any court order prohibited her from leaving. Her attorney checked the court records and informed her she was not bound to remain in the state. While outside the state, Shari said she contacted her attorney and had him investigate whether there was a warrant issued. When' she discovered there was a material witness warrant issued, she returned to Kansas. In rebuttal, the State introduced the testimony of Donna Diseker that during one point in Diseker and Shari’s custody fight, Shari had bragged about her ability to lie credibly with regard to pending court proceedings. Donna testified, “She said that she could he better than we could tell the truth, and that no one would believe us because she was Chloe’s mother, and that no one would believe us because the lies she told about us were so convincing.” The jury convicted Shari of both the first-degree murder and the conspiracy charges. After a sentencing hearing, the jury unanimously recommended the hard 40. The court imposed that sentence. On the conspiracy charge, the court imposed a concurrent sentence of 73 months. Shari appeals raising 16 issues, which we will consider and answer as presented. Did the trial court erroneously admit evidence of Shari’s flight from KansasP Shari contends it was improper to admit as evidence of flight that she left Kansas after Bansemer’s arrest, travelled to Louisiana under an assumed name, disguised herself, and attempted to secure employment, even though she had told people she was going to California to visit a family member. Before trial, the court heard arguments and denied Shari’s motion in limine to exclude evidence relating to Shari’s trip from Kansas to Florida. The record shows no contemporaneous or continuing objection during trial to the introduction of this evidence. Ordinarily, the lack of such an objection would prevent appellate review. See State v. Johnson, 255 Kan. 252, Syl. ¶ 1, 874 P.2d 623 (1994); K.S.A. 60-404. However, as this is a hard 40 case, by legislative direction we must nevertheless consider the merits of this claim. See State v. Collier, 259 Kan. 346, 913 P.2d 597 (1996). In Kansas, a seminal case on flight evidence is State v. Walker, 226 Kan. 20, 22, 595 P.2d 1098 (1979). Although we noted in Walker that such evidence must necessarily be considered with caution because of its ambiguous probative value, we nevertheless adopted a liberal approach to its admission. We held: “Conduct, including flight, of an accused following the commission of an alleged crime may be circumstantially relevant to prove both the commission of the acts charged and the intent and purpose for which those acts were committed.” 226 Kan. 20, Syl. ¶ 2. Shari relies on State v. Wood, 188 Kan. 833, 839-40, 365 P.2d 1080 (1961), to argue that her conduct does not support an inference of guilt. It was held in Wood that no presumption of guilt could be inferred from moving from one county to another upon the direction of counsel. Although Shari had checked with her attorney before leaving Kansas, Wood is not persuasive. Shari maintains that her travel and subterfuge can be explained by reasons other than her involvement in the murder of her husband. She alleges that she believed law enforcement was involved in the crime and presented a continuing threat to her own well-being. Thus, she argues, she was fleeing from law enforcement but not because she was guilty. Shari was free to put forth this defense, but such evidence, which might weaken the inference of guilt implicit in the flight, “does not render the evidence of flight inadmissible, but is merely to be considered by the jury in weighing the effect of such evidence.” Walker, 226 Kan. at 24. The trial court has discretion to exclude evidence when its probative value is outweighed by its prejudicial effect on the jury. State v. Martin, 237 Kan. 285, Syl. ¶ 1, 699 P.2d 486 (1985). The trial court did not abuse its discretion in admitting evidence of Shari’s travels. Did the trial court erroneously admit evidence that a large sum of money was found in Shari’s purse at her arrest? Shari contends the trial court erroneously permitted the State to introduce evidence that a large sum of money was found in her purse at her arrest. From this evidence, the State surmised in its closing argument that Shari might have been planning to flee again following Bansemer’s preliminary hearing. In reviewing a trial court decision regarding the suppression of evidence, we review“the factual underpinnings of the decision by a substantial competent evidence standard of review and review the ultimate legal decision drawn from those facts de novo with independent judgment. See State v. Vandiver, 257 Kan. 53, Syl. ¶ 6, 891 P.2d 350 (1995); State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979). The evidence at issue was money discovered in her purse at the time of her arrest at the courthouse. She placed the purse on a chair as she stood to be handcuffed. In this circumstance, the State clearly had authority to inventory the contents of the purse to preserve the property of the accused and protect itself from a later claim that some property was missing. We explained the scope of such an inventory search in State v. William, 248 Kan. 389, Syl. ¶ 21, 807 P.2d 1292, cert. denied 502 U.S. 837 (1991): ‘When an accused has been lawfully arrested and is being held in custody, the personal effects in his or her possession at the time and place of arrest may lawfully be searched, inventoried, and placed in safekeeping by law enforcement officers without a search warrant when the search and seizure is incidental to the arrest.” Shari’s reliance on cases following State v. Boster, 217 Kan. 618, 630-31, 539 P.2d 294 (1975), for the principle that an inventory search is limited to items within plain view is misplaced as Boster and these other cases were explicitly overruled in State v. Fortune, 236 Kan. 248, 258, 689 P.2d 1196 (1984). See also William, 248 Kan. at 425-26 (rejecting plain view test for inventory of personal belongings possessed at time of arrest). Did the trial court erroneously exclude evidence that Shari took a polygraph test before leaving Kansas? Shari contends the trial court erroneously excluded evidence that she voluntarily took a polygraph test prior to leaving the state. She acknowledges the ironclad rule that the results of such examinations are inadmissible absent a stipulation between the parties, see State v. Green, 245 Kan. 398, Syl. ¶ 4, 781 P.2d 678 (1989), but argues the fact she willingly took the examination, without regard to the results, shows her innocent state of mind at the time she left Kansas and rebuts the inference of guilt that flight permitted. . The State argues-that, we have excluded not only the results of polygraph tests, but also testimony about a defendant’s willingness to-take one. See State v. McCarty, 224 Kan. 179, Syl. ¶ 2, 578 P.2d 274 (1978): It is the Státe’s contention that admitting Shari’s evidence would unavoidably imply the result and also imply that the polygraph was -viewed by law enforcement to be a reliable and ‘competent tool for discéming truthfulness. “Polygraph tests are too unreliable to be admissible and they tend to invade the province of the-jury in determining the ultimate question of fact: whether a witness is speaking-the truth.” State v. Martin, 237 Kan. 285, Syl. ¶ 3, 699 P.2d 486 (1985). “One of the factors in disallowing polygraph evidence is the weight placed upon the evidence by the jury, which results in the jury function being usurped.” 237 Kan. 285, Syl. ¶ 7. It is well established that the results of a polygraph examination: may-not be used by a defendant to show the lack of guilty knowledge. See State v. Mason, 238 Kan. 129, 131, 708 P.2d 963 (1985). Similarly, absent a stipulation nei¡ther,.the.refusal to, submit to.such an examination nor the offer to do so-is admissible. State v. McCarty, 224 Kan. 179, 182; State v. Roach, 223 Kan. 732; Syl. ¶ 1, 576 P.2d 1082 (1978). More importantly in, this pase,, it is improper to permit the defendant to refer to.thie faking of a polygraph test. See State v. Wise, 237 Kan. 117, 123-24, 697 P.2d 1295 (1985). Shari’s,argument that the fact an examination was taken can be admitted has no basis. - Although the record is unclear'as to the details; it also appears that the examination Shari wanted in evidence was á private one she procured and not' one reqüested by the State. The trial court did riot err in excluding this evidence. Did the trial, court erroneously admit evidence of Shari’s alleged attempt to find someone to kill an earlier husband, and her own self-reported ability .to lie credibly in court? . We.next' consider Shari’s complaint that’the trial court erroneously admitted the testimony of Diederich and Diseker. Diederich testified about a conversation he had with Shari during the time of an earlier divorce' in which she inquired whether Diederich knew anyone she could hire to kill her husband. Diseker testified that in the course of custody battles, Shari had bragged about her ability to lie, saying she could lie better than Diseker could tell the truth. The admission or exclusion of evidence is within the trial court’s sound discretion, subject to exclusionary rules. State v. Schultz, 252 Kan. 819, Syl. ¶ 9, 850 P.2d 818 (1993). Shari argues that Diederich testimony is evidence of a prior bad act inadmissible under K.S.A. 60-447. In relevant part, that statute provides: “Subject to K.S.A. 60-448 when a trait of a person’s character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K.S.A. 60-446, except that (a) evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible . . . .” In the present case, Diederich testimony was not admitted to prove any character trait of Webber. K.S.A. 60-447 is not the statute that controls its admissibility. K.S.A. 60-455 is. That statute provides: “Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” The State argues the testimony was admissible, and admitted, under K.S.A. 60-455. Prior to Diederich testimony, the trial court conducted a hearing outside the presence of the jury to determine whether the evidence was probative to any material issue in the case. The evidence was offered to show motive, intent, and absence of mistake, and the jury was informed of the limited purposes to which it could be put. The trial court’s decision to permit evidence of prior wrongs under K.S.A. 60-455 is subject to review for whether the trial court abused its discretion or whether it admitted clearly irrelevant evidence. State v. Peckham, 255 Kan. 310, 330, 875 P.2d 257 (1994). Considering the similarity of the incident to which Diederich testified and the current charges and the fact that Shari contended Bansemer had misunderstood her intentions, the trial court cannot be said to have abused its discretion. It is argued the testimony of Diseker was inadmissible because of K.S.A. 60-422(d). In relevant part, K.S.A. 60-422 provides: “As affecting the credibility of a witness . . . (c) evidence of traits of his or her character other than honesty or veracity or their opposites shall be inadmissible; [and] (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.” In State v. Smallwood, 223 Kan. 320, 326-27, 574 P.2d 1361 (1978), we explained the operation of subsections (c) and (d): “In substance K.S.A. 60-422(c) disallows proof of general bad or good character and limits character evidence impeaching or supporting a witness’s credibility to the traits of honesty or veracity or their opposites. K.S.A. 60-422(d), on the other hand, limits the manner of proving such character traits as affecting the credibility of a witness by disallowing evidence of specific instances of the witness’s conduct. This limits K.S.A. 60-446, which allows proof of character by opinion testimony and evidence of reputation. “Thus, a witness’s credibility may be attacked by showing the witness has character traits for dishonesty or lack of veracity, but those traits may only be proven by opinion testimony or evidence of reputation. Those traits may not be proven by specific instances of the witness’s past conduct.” Subsection (d) of K.S.A. 60-422, disallowing evidence of specific instances of conduct, does not apply to Diseker s testimony. Diseker s testimony did not relate to a specific act of dishonesty or conduct illustrative of a character trait. Compare Smallwood, 223 Kan. at 326. Attacks on a witness’ credibility to show dishonesty are permitted through the use of opinion or reputation evidence. Herbstreith v. de Bakker, 249 Kan. 67, 76, 815 P.2d 102 (1991). Diseker’s testimony was simply a means of introducing Shari’s own opinion of her own veracity and was not erroneous. A witness’ self-assessment of his or her veracity is admissible to attack the witness’ credibility in rebuttal. The trial court did not abuse its discretion. See State v. Borthwick, 255 Kan. 899, Syl. ¶ 11, 880 P.2d 1261 (1994) (admission of rebuttal evidence left to trial court discretion). Did the trial court err in limiting the cross-examination of Bansemer? Next, Shari argues the trial court erroneously prohibited the defense from cross-examining Bansemer about allegedly preferential treatment he received while in jail. During his cross-examination, Bansemer denied that, other than his deal to testify, he received from law enforcement officers any special treatment different from any other prisoners. Counsel for Shari had approached the bench immediately before this questioning. At a later conference during a break in the cross-examination, counsel made a proffer of evidence he sought to introduce on the issue of preferential treatment while cross-examining Bansemer. Counsel proffered evidence that Bansemer had been allowed to go home for Thanksgiving dinner and that his family was permitted to have a Christmas party with him at the sheriff’s office. The trial court ruled that those details were not relevant and that Shari had been permitted to ask if any special treatment had induced Bansemer to testify, which Bansemer denied. In response, Shari’s counsel argued Bansemer might not have known he was receiving preferential treatment. Limitations on the extent of cross-examination will not be overturned absent proof of a clear abuse of judicial discretion. See State v. Brown, 235 Kan. 688, Syl. ¶ 1, 681 P.2d 1071 (1984). Shari was allowed to inquire whether Bansemer felt he had received preferential treatment. From the context of the court’s ruling, it is clear that she was not denied the opportunity to present evidence in her own case in chief rebutting Bansemer’s denial; she was simply limited in the details she could discuss in cross-examination. Discretion is abused only when no reasonable person would agree with the trial court. The court did not abuse its discretion. Did the trial court err in instructing the jury on second-degree murder? Shari next argues that the trial court erroneously instructed the jury on second-degree murder. She contends one cannot aid, abet, or counsel another to commit murder without premeditation. Second-degree murder requires the killing of a human being committed intentionally. K.S.A. 21-3402. It does not require that the killing be done without premeditation. A defendant can be convicted of second-degree murder upon proof of facts which would establish first-degree murder. State v. Carpenter, 228 Kan. 115, 121, 612 P.2d 163 (1980). Additionally, it appears this is a complaint about actions of the trial court which have wrought no harm. See State v. Johnson, 255 Kan. 140, 148, 871 P.2d 1246 (1994). Shari was convicted of first-degree murder. The instruction regarding second-degree murder made no difference. Did the trial court err in failing to give an instruction on criminal solicitation as a lesser included offense of either conspiracy to commit first-degree murder or aiding and abetting first-degree murderP Shari argues the jury was improperly instructed with regard to charges supported by the evidence introduced. First, she argues the trial court erred by failing to instruct the jury on the lesser included offense of criminal solicitation, K.S.A. 21-3303. The court has a duty to instruct the jury of all lesser included offenses established by substantial evidence, however weak. State v. Harmon, 254 Kan. 87, Syl. ¶ 1, 865 P.2d 1011 (1993). A two-pronged test determines whether a lesser crime is a lesser included offense under K.S.A. 21-3107(2)(d): “In determining whether a lesser crime is a lesser included offense under K.S.A. . . . 21-3107(2)(d), a two-step analysis or two-pronged test has been adopted. The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. If so, the lesser crime is a lesser included crime of the crime charged. Under the second prong of the test, even if the statutory elements of the lesser crime are not all included in the statutory elements of the crime charged,' the lesser crime may still be a lesser included crime under K.S.A. . . . 21-3107(2)(d)ifthe factual allegations of the charging document and the evidence required to be adduced at trial in order to prove the crime charged would also necessarily prove the lesser crime.” State v. Fike, 243 Kan. 365, Syl. ¶ 1, 757 P.2d 724 (1988). See State v. Berberich, 248 Kan. 854, 857, 811 P.2d 1192 (1991). K.S.A. 21-3303(a) defines criminal solicitation: “Criminal solicitation is commanding, encouraging or requesting another person to commit a felony, attempt to commit a felony or aid and abet in the com mission or attempted commission of a felony for the purpose of promoting or facilitating the felony.” Shari does not argue that solicitation is a lesser included offense of conspiracy to commit first-degree murder and first-degree murder under the first prong of the Fike test. Instead, she argues the evidence required to prove the conspiracy and the first-degree murder charges necessarily would prove criminal solicitation in this case and would render criminal solicitation a lesser included offense under the second prong of the test. The second prong of the Fike test requires both that the charging instrument allege facts which would prove the alleged lesser included offense and that the evidence required to prove the charge establish that such offense was committed. 243 Kan. at 368. The conspiracy charge alleged that Shari had “agree [d] with another person, namely Victor Lee Bansemer, Jr., to commit or assist in the commission of murder in the first degree, an overt act in furtherance thereof having been committed by said Victor. Lee. Bansemer, Jr.” Because it would be possible to prove this charge without regard to whether Shari commanded, encouraged, or requested that Bansemer commit first-degree murder — an agreement, however reached, whether at Bansemer’s prompting or Shari’s, was enough — from the language of the complaint, solicitation would not be a lesser included offense of conspiracy. We have recently held that solicitation to commit first-degree murder is a separate and independent criminal offense from aiding and abetting first-degree murder, and the jury need not.be instructed on criminal solicitation as a lesser included offense. In State v. DePriest, 258 Kan. 596, 604-05, 907 P.2d 868 (1995), we said: “We need not engage in a Fike analysis under the facts of this case because solicitation to commit first-degree murder is an independent criminal offense, separate and distinct from aiding and abetting first-degree murder. K.S.A. 1994 Supp. 21-3303(a) defines criminal solicitation as ‘commanding, encouraging or requesting another person to commit a felony, attempt to commit a felony or aid and abet in the commission or attempted commission of a felony for the purpose of promoting or facilitating the felony.’ Solicitation is a specific intent crime under Kansas law. A person is not guilty of solicitation unless he or she intentionally commits the actus reus of the offense, viz., he or she commands, encourages, or requests another person to commit a felony with the specific intent that the other commit the crime he or she solicited. The actus reus of the solicitation occurs under Kansas law if a person by words or actions invites, requests, commands, or encourages a second person to commit a crime. The crime is complete when the person communicates the solicitation to another with the requisite mens rea. No act in furtherance of the target needs to be performed by either person. “K.S.A. 1994 Supp. 21-3205(1), on the other hand, states that ‘[a] person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.’ Thus if a person solicits another to murder the victim, as happened in this case, and the person solicited murders the victim, the defendant is an accomplice in the commission of the murder and may be convicted of that offense. In these circumstances, the crime of solicitation is a separate offense, not a lesser included offense of aiding and abetting first-degree murder. See State v. Edwards, 250 Kan. 320, 330-331, 826 P.2d 1355 (1992) (holding that criminal solicitation is a separate and distinct offense from aiding and abetting the crime of making a false writing). “The evidence in this case was that the defendant solicited Moore to murder Hill. The evidence also established that Moore killed Hill. The question for resolution by the jury was whether the defendant aided and abetted in the commission of the murder. The jury found that he did. Once this was established the defendant was guilty of murder. “The defendant was either guilty of murder as an aider and abettor or he was not guilty. The defendant was not charged with the separate offense of solicitation. The jury found that the evidence established beyond a reasonable doubt that the defendant encouraged or requested Moore to commit murder and, thereby, was guilty of the murder as an aider and abettor of the murder.” We hold this issue is resolved by our specific language in DePriest. Are conspiracy to commit first-degree murder and aiding and abetting first-degree murder multiplicitous ? The next challenge Shari levels against the crimes charged is that conspiracy to commit first-degree murder and aiding and abetting first-degree murder are multiplicitous. K.S.A. 21-3107 provides: “(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment. “(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: “(d) a crime necessarily proved if the crime charged were proved.” The Fifth Amendment guaranty against double jeopardy provides constitutional protection against multiple prosecutions for the same offense and multiple punishments for the same crime. North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). “Multiplicity exists if the State uses a single wrongful act as the basis for multiple charges. Charges are not multiplicitous if each charge requires proof of a fact not required in proving the other.” State v. Baker, 255 Kan. 680, Syl. ¶ 2, 877 P.2d 946 (1994). We have held that conspiracy and aiding and abetting another offense are not multiplicitous. State v. Hobson, 234 Kan. 133, 139, 671 P.2d 1365 (1983). Each offense requires proof of a element not required by the other: “Conspiracy requires an agreement to commit a crime, while aiding and abetting requires actual participation in the act constituting the offense.” Shari argues Hobson is distinguishable because in her case the jury must have relied on the same conduct to find both an implicit agreement and her actual participation. Hobson directly addresses this argument: “In the trial of a criminal case [multiplicity] does not depend upon whether the facts proved at trial are actually used to support conviction of both offenses charged; rather, it turns upon whether the necessary elements of proof of the one crime are included in the other.” 234 Kan. 133, Syl. ¶ 3. Conspiracy requires an overt act, while aiding and abetting does not. The evidence showing that Shari drew' Bansemer maps and suggested methods of killing her husband, and that Bansemer then slew Scott, establishes the elements of aiding and abetting, but does not necessarily establish an agreement to commit the crime such that a conspiracy is proved. Do alleged deficiencies in the bill of particulars prepared by the State provide grounds for reversal? In October 1994, Shari moved for a bill of particulars pursuant to K.S.A. 22-3201. The motion sought a statement from the county attorney of “[t]he precise manner in which the crime of conspiracy is alleged to have been committed by the Defendant”; “[t]he pre cise overt act alleged as having been committed by Victor Lee Bansemer, „Jr., in furtherance of the said conspiracy”; and “[t]he exact time and place wherein the said overt act occurred.” In the second count, first-degree murder through a theory of aiding and abetting, the motion sought “[t]he precise manner in which the Defendant is alleged to have committed the crime charged.” Although a bill of particulars was furnished, there is no record of any objection to the bill of particulars prior to this appeal. For. the first time on appeal, Shari asserts that she was denied her rights under the Sixth Amendment to the United States Constitution and §. 10 of the Kansas Constitution Bill of Rights. K.S.A. 22-3201(f) establishes the procedure required to seek a bill of particulars: “When a complaint, information, or indictment charges a crime but fails to specify the particulars of the crime sufficiently to. enable the defendant to prepare a defense the court may, on written motion of the defendant, require the prosecuting attorney to file a bill of particulars. At trial the state’s evidence shall be confined to.the particulars of the bill.” . . , Shari does not challenge the sufficiency of the complaint, but only the detail of the bill of particulars. The decision to require the prosecution to file a bill of particulars is discretionary with the trial court except in such cases where the charging instrument itself is insufficient to inform the accused of the charge against which he or she must defend. See State v. Ashton, 175 Kan. 164, 174-75, 262 P.2d 123 (1953). When a defendant challenges the sufficiency of a bill of particulars, the-trial court does not abuse its discretion in denying a request for a more definite statement where the information disclosed in the bill of particulars, together with information revealed in the preliminary hearing and pretrial discovery, provides the defendant with “adequate knowledge of the nature of the charges and the opportunity to avoid surprise.” State v. Craven, 215 Kan. 546, 549-50, 527 P.2d 1003 (1974); see also State v. Kee, 238 Kan. 342, 354, 711 P.2d 746 (1985) (no abuse of discretion in denying bill of particulars where record clear defendant was not misled). .The State’s failure to timely and meaningfully comply with an order for a bill of . particulars should be met with either a timely objection or a request for a continuance by the offended party and consideration by the trial court of whether sanctions are merited, not a request for a new trial on appeal. See State v. Coburn, 220 Kan. 743, 745, 556 P.2d 376 (1976). By failing to avail herself of the opportunity to request a continuance or objecting to the detail provided by the State and by proceeding to trial, Shari waived any right she may have had to require a more definite bill of particulars. See State v. Cory, 211 Kan. 528, 533, 506 P.2d 1115 (1973); State v. White, 1 Kan. App. 2d 452, 457, 571 P.2d 6 (1977). In the present case, the complaint, together with the bill of particulars, informed Shari of the charges which she was required to defend. The preliminary hearing and pretrial discovery disclosed in detail the factual allegations on which the charges were based. The trial court did not err in failing sua sponte to require the State to file a more definite bill of particulars. This allegation of error is without merit. Do the prosecutor’s allegedly improper remarks during closing argument constitute reversible error? Next, Shari complains of the prosecutor s allegedly improper remarks in closing argument. Shari alleges the prosecutor referred to her exercise of her constitutional privilege against self-incrimination. She objected and the objection was sustained: “Shari Webber needed Victor Bansemer so her hands would appear clean when the deed was done. Shari Webber Med, and lied, and Med from the beginning of this investigation. Why, ladies and gentlemen, is this the first time she has told the story she told during this trial? Because it is a he. Why did she not tell the police— “MR. MILLER: Your honor, I’m going to object, he is commenting on the defendant’s right to remain silent. “COURT: Sustained. “MR. CONCANNON: Yes, your honor. She lied. Why didn’t she admit the relationship— "MR. MILLER: Same objection. “MR. CONCANNON: —the relationship to Victor Bansemer? “COURT: Overruled, it’s a comment on the evidence . . . .” Where the trial court sustains an objection there remains no grounds for assertion of error on appeal unless the remarks are so prejudicial as to be incurable. State v. Pursley, 238 Kan. 253, Syl. ¶ 6, 710 P.2d 1231 (1985). See State v. Herschberger, 160 Kan. 514, 517, 163 P.2d 407 (1945) (on appeal, juiy will be presumed to have disregarded evidence about which an objection was sustained); see also State v. Pioletti, 246 Kan. 49, 67, 785 P.2d 963 (1990) (no reversible error when objection to prosecutor s comment sustained). The prosecutor’s remarks were not an impermissible comment on Shari’s post-arrest silence, notably because rather than invoking her right to silence, she chose to freely discuss her involvement in the crime with law enforcement officers. Because the prosecutor was interrupted, it is not clear whether the comment dealt with some issue she was merely silent about, or whether it dealt with some issue with regard to which the evidence indicated she actively misrepresented the facts to law enforcement officers during their investigation. The prosecutor’s rewording of the question suggests that it was the latter. In any event, the remark was not so prejudicial as to be incurable, and there is no reversible error. Is Shari entitled to a new trial because the State failed to fully comply with a discovery orderP Next, Shari contends the State intentionally violated a discovery order by failing to inform the defense that immediately prior to trial, Bansemer was assured that even if he changed his testimony, which had originally implicated Shari, his plea bargain would remain in place. Shari contends this was so prejudicial to her defense that a new trial is required. “A trial court is vested with wide discretion in dealing with the failure of a party to comply with a discovery and inspection order. In exercising its discretion as to whether sanctions should be applied for violation of a discovery and inspection order the trial court should take into account the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances. In furtherance of just and expeditious determination of cases requests for continuance should be utilized where necessary if the party is surprised because of his adversary’s failure to disclose in compliance with a discovery order.” State v. Coburn, 220 Kan. 743, Syl. ¶ 1. Initially, when made aware of the new arrangement with Bansemer, Shari’s counsel requested a mistrial. The trial court suggested that the request might be granted when it stated: “[B]e very careful for what you ask, because you may receive it.” Counsel was granted a requested recess until the following morning. After conferring with his client, defense counsel withdrew the mistrial request and did not ask for a further continuance. We have previously held that where the defendant specifically declines to request a mistrial based on an alleged error, the defendant cannot argue on appeal that the error requires a new trial. State v. Johnson, 219 Kan. 847, 850-51, 549 P.2d 1370 (1976). Thus, even if the assurance that a plea bargain which has already resulted in a conviction and a sentence will not be revoked constitutes the type of evidence the prosecution should have revealed earlier under the discovery order, there is no reversible error. Did cumulative trial error deprive Shari of a fair trial? Shari argues that considered cumulatively, trial error denied her a fair trial. Considering the totality of the circumstances, she was not so substantially prejudiced by the alleged errors that she was denied a fair trial, which would require reversal of her conviction. See State v. Castoreno, 255 Kan. 401, Syl. ¶ 3, 874 P.2d 1173 (1994). There was wide divergence in the testimony of Bansemer and Shari, as well as conflicting evidence from other witnesses, from which the jury, acting as it should, determined the credibility of the witnesses and properly performed its legal and constitutional function. Was there sufficient evidence to support Shari’s convictions of conspiracy to commit first-degree murder and first-degree murder? The final trial issue raised is the sufficiency of the evidence to support the convictions of conspiracy and first-degree murder. “If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.” State v. Timley, 255 Kan. 286, Syl. ¶ 13, 875 P.2d 242 (1994). Conspiracy requires proof of two essentials: an agreement between two or more people to commit or assist in committing a crime and an overt act furthering the object of the conspiracy by at least one of the conspirators. K.S.A. 21-3302; State v. Hill, 252 Kan. 637, Syl. ¶ 1, 847 P.2d 1267 (1993). Shari challenges the sufficiency of the evidence to show that she agreed with Bansemer to commit first-degree murder. She acknowledges Bansemer’s detailed testimony regarding the extent of her involvement in encouraging him and helping him to plan the murder, but argues there was never any direct evidence of any agreement. “To establish a conspiracy it is not necessary that there be any formal agreement manifested by formal words, written or spoken; it is enough if the parties tacitly come to an understanding in regard to the unlawful purpose, and this may be inferred from sufficiently significant circumstances.” ‘While an agreement is a necessary element of a conspiracy, the existence of an agreement need not be proved directly, but may be inferred from other facts proved. If one concurs in a conspiracy, no proof of an agreenjent to concur is necessary to establish guilt.” State v. Schultz, 252 Kan. 819, Syl. ¶¶ 10, 11, 850 P.2d 818 (1993). All the evidence in this case, viewed most favorably to the prosecution, is sufficient to support a conclusion beyond a reasonable doubt that Shari came to an agreement with Bansemer regarding the murder of Scott. Shari also contests the sufficiency of the evidence to support her first-degree murder conviction. She argues that the ambiguity of the evidence regarding premeditation would prevent a rational jury from finding that the murder was premeditated. Shari recounts that Bansemer did not initially implicate her and had testified or told other people he was angry at the victim and “mad at the whole situation,” and killed the victim during an altercation. Bansemer also testified he went to the victim’s house to kill him, that he and Shari had been planning the killing for several weeks, and that Shari had sent him that night and the night before with instructions to kill Scott. There was ample evidence of premeditation. Finally, Shari raises three issues regarding the sentencing phase of her trial. Is the aggravating circumstance qn which the ■jury relied, that tjie “defendant authorized or employed another person to commit the-crime,” KS.A, 21-4625(4), unconstitutionally,vague? Shari suggests an aggravating circumstance is impermissibly vague if it fails to give fair warning to those potentially subject-to it and inadequately guards against arbitrary or discriminatory ácr tion. She also argues that as a criminal-’Statute;, it is d.o be strictly construed. When considering penalty provisions, we-have .explicitly rejected the rigorous approach to vagueness applied to. statutes defining violations of the law. See State v. Bailey, 251 Kan. 156, 172-73, 834 P.2d 342 (1992). Because criminal conduct is a prerequisite to the application of sentencing statutes, the risk of infringing on constitutionally protected, conduct is npt involved; in addition, discretion is inherent.in the sentencing process. “[A] statute will, not be declared void-for vagueness and uncertainty where it employs words commonly used,'previously judicially defined or having settled meaning inlaw.” State v. Rose, 234 Kan. 1044, 1046, 677 P.2d 1011 (1984). K.S.A. 21-4625(4) employs commonly used words, easily understood by a jury applying them. It is not unconstitutionally vague, , , . . ; , ., Was there sufficient evidence to support' a!finding beyond a reasonable'doubt that1 one o’r more-of the aggravating circumstances in KS.A. 21-4625 outweighed any mitigating circumstances? ' Appellate review of a hard 40 sentence is sanctioned by K.S.A. 1993 Supp. 21-4627(3), which’requires this court to determiné “whether the sentence was imposed under (he influence of passion, prejudice, or any other arbitrary factor’ and whether the evidencé supports the findings that the aggravated-circumstances’ existed and that any mitigating circumstances were insufficient to outweigh the aggravating circumstances.” State v. Gideon, 257 Kan. 591, Syl. ¶ 16, 894 P.2d 850 (1995). In fulfilling' this mándaté,-wé háve adopted the following standard of review; “When the sufficiency of the evidence establishing an aggravating circumstance in a hard 40 sentence is challenged, the standard of review is whether, after a review of all the evidence on this issue, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of tlfe aggravating circumstance beyond a reasonable doubt.” State v. Reed, 256 Kan. 547, Syl. ¶ 6, 886 P.2d 854 (1994). The aggravating factor found in this case was that “[t]he defendant authorized or employed another person to commit the crime.” K.S.A. 21-4625(4). Shari argued that mitigating circumstances should include her lack of prior criminal activity, the allegedly minor extent of her participation in a crime committed by another, and her age at the time of the crime. Evidence presented at trial was clearly sufficient to establish that Shari cultivated a relationship with Bansemer to use him as an instrument to kill her husband. The aggravating factor was sufficiently supported, and a rational jury could find it outweighed any countervailing mitigating circumstances. There is no evidence the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. Did the trial court err in denying Shari’s proposed jury instructions during the sentencing phase? Finally, Shari argues that the trial court erred in failing to instruct the jury during the sentencing stage about the procedures and law governing the grant or denial of parole, and by failing to provide a definition of the term “mitigating.” Shari proposed a jury instruction based on K.S.A. 22-3717 which would have explained in detail the procedures for parole hearings and the factors considered by the parole board. The trial court refused to give this proposed instruction. Shari argues that because the only difference between a hard 40 sentence and the sentence she otherwise would receive is when she would be eligible for parole, the jury should be made aware of the nature of the parole process. Jury instructions which properly and fairly state the law as applied to the facts of the case which could not reasonably have misled the jury provide no basis for reversal. See State v. Johnson, 255 Kan. 252, Syl. ¶ 4, 874 P.2d 623 (1994). The instructions given, without reference to the nature of parole proceedings, correctly stated the law without creating the possibility of confusion with immaterial matters. The instructions given by the trial court were not erroneous. It was not reversible error to refuse to give the requested instruction. Shari also complains the trial court refused to provide a definition of “mitigating” when requested by the jtny. During the sentencing deliberations the jury submitted the written question: “Could the jury have a simple lay definition of the term mitigating?” , Defense counsel requested the jury be instructed: “Mitigating circumstances are such as do not constitute a justification or excuse of the offense in question, but which, in fairness and mercy, may be considered as reducing the degree of moral culpability.” Instead, the trial court instructed the jury: “The. terms in the jury’s instructions are intended to be given their common definitions and usages. Please consider this instruction along with all other instructions previously given.” After receiving the trial court’s instruction, the jury did not seek clarification but returned a unanimous verdict. The trial court did not abuse its discretion in the manner it answered the question. Affirmed.	[ -112, -24, -35, -98, 59, 96, 42, -8, 115, -13, -30, -13, -87, 75, 13, 107, 58, 15, 81, 105, -48, -73, 15, -63, -78, 123, -13, -37, -77, 90, -76, -35, 12, 82, 10, 69, 98, 10, 55, 80, -116, -110, -87, -16, 18, 66, 56, 59, 122, 14, 117, -114, -77, 43, 30, -25, -56, 42, 75, 45, -44, -80, -21, 7, -8, 18, -77, 1, -82, -124, -40, 55, -100, -68, 0, -20, 115, -106, -126, 116, 75, -119, 4, 39, 99, 33, -100, -51, -83, -56, 46, 126, 63, 39, -103, 73, 0, 76, -74, -67, 101, 116, 43, -8, -19, 79, 29, -20, -116, -54, -112, -111, 13, 56, -110, 82, -21, -128, 32, 97, -51, 98, 76, 100, 123, -109, -50, -10 ]
The opinion of the court was delivered by ALLEGRUCCI, J.: Michael Prosper was convicted by a jury of one count of sale of cocaine within 1,000 feet of a school. He was sentenced to 73 months’ imprisonment. The Court of Appeals affirmed Prospers conviction. State v. Prosper, 21 Kan. App. 2d 956, 910 P.2d 859 (1996). This court granted Prospers petition for review. Gregory Senigaur entered into an agreement with the State to set up three prosecutable drug buys in exchange for his being charged with possession of marijuana and possession of cocaine rather than possession of controlled substances with intent to sell ■within 1,000 feet of a school. On January 11, 1994, a police officer gave Senigaur $20 for the purpose of buying cocaine from Michael Prosper. Without making any prior arrangements with Prosper, Senigaur went to the defendant’s apartment. Senigaur told the person who let him in that he wanted “to buy a 20.” In other words, he wanted to buy $20 worth of rock cocaine. Prosper came out of the bathroom; then he and Senigaur went back into the bathroom, talked briefly, and exchanged the $20 for rock cocaine. After being in the apartment approximately 5 minutes, Senigaur left and met the police at a prearranged spot. The proximity of Prosper’s apartment to a school was the subject of the testimony of Pamela Dunham, a cartographer with the Lyon County Appraiser’s office. Approximately 2 months before trial, she prepared a map, which was marked as an exhibit and admitted into evidence. It showed what properties were within a circle with a 1,000-foot radius centered on 1001 Commercial Street in Emporia. The Alternative School is located, at T001 Commercial. Prosper’s apartment at 824 Mechanic Street was within the circle. A straight line from the southeast comer of the building at 1001 Commercial to the southeast comer of the building at 824 Mechanic measured 865 feet. Dunham testified that the measurement was accurate to within 50 feet. She also testified that pedestrian routes between the school and Prosper’s apartment exceeded 1,000'feet. Prosper appealed his conviction, contending that (1) the evidence. of prior drug transactions between the witness and himself was inadmissible; (2) the juiy should have been instmcted on the lesser included offense of sale of cocaine; (3) the sale of cocaine within 1,000 feet of a school is a specific intent crime; (4) there was insufficient evidence that the transaction occurred within 1,000 feet of a school; and (5) K.S.A. 1993 Supp. 65-4127a(d) is unconstitutionally vague. The Court of Appeals affirmed Prosper’s conviction, rejecting all of his contentions. As to Prosper’s contention that the sale of cocaine within 1,000 feet of a school is a specific intent crime, the court noted, that it already had been considered and rejected in State v. Swafford, 20 Kan. App. 2d 563, 567, 890 P.2d 368, rev. denied 251 Kan. 1095 (1995). In Swafford, the Court of Appeals considered federal case law interpreting the federal “schoolyard statute.” The Court of Appeals stated: "In United States v. Falu, 776 F.2d 46 (2d Cir. 1985), the court held that the schoolyard statute did not require proof that a drug trafficker had knowledge of the proximity of a school and concluded that a knowledge requirement would be contrary to the purpose of the statute disclosed by the legislative history. The court held that ‘a requirement that the dealer know that a sale is geographically within the. prohibited area would .undercut this unambiguous legislative design.’ The court concluded that although ‘some schools are not clearly recognizable as such from all points within the l,000:foot radius. Congress evidently intended that dealers . . . bear the burden of ascertaining where schools are located and removing their operations from those areas Or else face enhanced penalties.’ 776 F.2d at 50. . “The legislative history cited by Swafford reveals that, like the federal schoolyard statute on which it was modeled, 65-4127a(c) was intended to create drug-free school zones. It was designed to protect young people from drug use and the violence add other negative influences that accompany drug dealing. Children are exposed to" these negative influences when drug deals are conducted near schools regardless of whether the dealers know they are within 1,000 feet of a school. “Requiring proof that Swafford knew a-school was within 1,000 feet could impose an onerous burden on police and prosecutors, which would be contrary' to the clear purpose of the statute. Swafford’s knowledge of the proximity of a school is not an essential element of the crime of selling cocaine widiin 1,000 feet of a school under 65-4127a(c).” 20 Kan. App. 2d at 566-67. In his petition for review', Prosper argued that Swafford w'as wrongly decided. His position is that the Swafford interpretation of the statute makes the sale of drugs within 1,000 feet of a school a strict liability crime. As the Court of Appeals stated, how'ever, the question is 'whether the legislature intended to require proof of knowledge of the proximity of a school iri addition to proof of intent to sell cocaine to establish a violation of 65-4127a(c).” (.Emphasis added.) 20 Kan. App. 2d at 566. Prosper also argues that the district court should have given his requested instruction on the lesser included offense of sale of cocaine because there w'as evidence that pedestrian routes between his apartment and the nearby school covered more than 1,000 feet. The Court of'Appeals correctly treated this question as a matter of statutory interpretation. 21 Kan. App. 2d at 959-60. The question really'is whether K.S.A. 1993 Supp. 65-4127a(d) prohibits drug salesWithin 1;000 feet of a school as the crow' flies or by pedestrian route. The statute provided, in part: “Notwithstanding any other provision of law, upon conviction of any person for a first offense pursuant to subsection (b), such-person shall be guilty of a drug severity' level 2 felony if such person is 18 or more years of age and the. substances involved were possessed with intent to sell, deliver or distribute; sold or offered for sale in or on, or within 1,000 feet of any school property upon which is located a structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades one through 12.” K.S.A. 1993 Supp. 65-4127a(d). Noting that the statute was based on a federal model, 21 U.S.C. § 860 (1994), the Court of Appeals consulted case law from federal courts, which have faced this issue many times. 21 Kan. App. 2d at 960. According to the Court of Appeals, “federal courts have consistently held that the phrase ‘within 1,000 feet’ of a school requires measurement in a straight line from the school property and not according to some pedestrian route. [Citations omitted.]” 21 Kan. App. 2d at 960. The Court of Appeals concluded that the legislature’s purpose in protecting children from drug use and drug dealing “are achieved by giving effect to the plain meaning of ‘within 1,000 feet,’ just as the federal courts have done.” 21 Kan. App. 2d at 961. Prosper offers no authority to support his contention that the distance should be measured by pedestrian routes from the school. The Court of Appeals introduced Prospers claim of insufficient evidence as follows: “Prosper argues there was insufficient evidence to support the verdict because (1) there was no testimony that any property was ‘school property’; (2) there was no evidence that he sold cocaine within 1,000 feet of a school, as measured by pedestrian routé; and (3) there was no evidence he knew he was selling cocaine within 1,000 feet of a school.” 21 Kan. App. 2d at 961. In light of conclusions it had reached in the previous issues, the Court of Appeals declined to “address Prospers second and third claims of insufficiency of evidence.” 21 Kan. App. 2d at 963. The first claim of insufficiency of evidence is predicated on a statutory requirement that “school property” within the meaning of K.S.A. 1993 Supp. 65-4127a(d) is school-district owned. Here, “the school property in question was leased by Unified School District No. 253 for instruction of students primarily in the 9th through 12th grades.” 21 Kan. App. 2d at 962. The Court of Appeals rejected Prosper’s argument: “K.S .A. 1993 Supp. 65-4127a(d) requires that the structure or property be used by a unified school district or accredited nonpublic school. The statute contains no ownership requirement. Had the legislature intended to adopt an ownership requirement, it could easily have done so. It is not the function of the court to rewrite a statute under the guise of interpretation. Pestock v. State Farm Auto. Ins. Co., 9 Kan. App. 2d 188, 189, 674 P.2d 1062 (1984). “Moreover, the legislature intended for the statute to protect children from the negative effects of drug use and drug dealing. Swafford, 20 Kan. App. 2d 567. Children are exposed to those negative influences when drug deals are conducted near schools regardless of whether the school buildings are owned or leased by school districts.” 21 Kan. App. 2d at 962-63. The Court of Appeals also rejected Prosper s argument that K.S.A. 1993 Supp. 65-4127a(d) is unconstitutionally vague. It did so on the ground that persons of common intelligence would not need to guess at what act was forbidden by the statute. The Court of Appeals reasoned: “The issue is whether the statute’s language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 243, 834 P.2d 368 (1992) (citing Hearn v. City of Overland Park, 244 Kan. 638, 642, 772 P.2d 758, cert. denied 493 U.S. 976 [1989]). “As discussed above, the statutory language indicates the distance is to be determined by straight-line measurement and the property need not be owned by the unified school district or private school. Prosper’s vagueness argument is without merit.” 21 Kan. App. 2d at 963. We have carefully reviewed the briefs, arguments, record, and the well-reasoned opinion of the Court of Appeals, and we conclude the Court of Appeals reached the correct result. The Court of Appeals’ opinion is adopted as the opinion of this court with the following modifications: In the Court of Appeals, Prosper argued that the district court committed reversible error in admitting testimony of prior drug sales. Prosper argued that testimony was not relevant to prove any disputed facts specified in K.S.A. 60-455, since he stood silent and did not place identity or intent or any of the other specified facts in issue. The Court of Appeals reasoned that the State was required to prove intent and identity and that the witness’ testimony about prior crimes “buttressed his identification of Prosper and was probative of Prosper’s intent.” 21 Kan. App. 2d at 957-58. The State witness’ courtroom identification of Prosper was unhesitating, and Prosper never challenged that identification. Prosper relies on State v. Davis, 213 Kan. 54, 515 P.2d 802 (1973). He contends that Davis made prejudice to the defendant the. controlling factor over relevance in determining the admissibility of prior crimes evidence. Davis was convicted of two counts óf selling heroin to an informant named Phillips. Phillips testified thát on both occasions he went to Davis’ apartment, gave Davis $100, and waited while. Daws went elsewhere to purchase heroin. Before the State closed its case in chief, Phillips was recalled to testify about making two purchases of heroin from Davis during the previous year. On appeal; the State argued that evidence of the two "earlier heroin transactions Was admissible as evidence relevant to the issue of defendant’s identity. 213 Kan. at 55. In this regard, the court expressed its intention to narrow the very broad construction which had been given the statutory provision on evidence of other crimes: " ■ ■ : • “[K.S.A. 60-455] is not autonomous on the. admissibility of evidence of past crimes since it is subject to the provisions of other rules relating, to-the admission of evidence. • . • ■ . “Kansas case law makes it clear the majority of prosecutors and trial courts have read K.S.A. 60-455 as though the exception in the last sentence were the rule, and when the proffered past crimes evidence bore some relevance to motive, opportunity, intent, preparation, plan; knowledge, identity, or absence of mistake, the gates of admissibility automatically swung open- under the theory proper instruction would correct any error of judicial discretion and would limit the jury’s consideration of the evidence to its proper role.' “Relevancy as the Single test of admissibility is disapproved from the very beginning of the evidence code. K.S.A. 60-407(/) provides all relevant evidence is admissible except as otherwise provided by statute. K.S.A. -60-455‘is such an exception generally prohibiting evidence of past crimes and takes precedence over 60-407(/):.... ' ■ “Although K.S.A. 60-445 refers to the exercise of discretion by the trial court when the evidence relates only to ‘surprise,’ it is a rule of necessity that the trial court may exclude any evidence which may unfairly prejudice a jury. Judge Gárd, in his comments following this.statute, states:- ‘Scattered among the Kansas decisions are cases which support the discretionary-power to exclude.'The rule is one of necessity. Trial judges and lawyers who have cases in court understand it and áre used to it. There is no novelty about it, but it is so taken for granted that to state it in rule formlooks unfamiliar. It is absolutely essential to the orderly and fair administration of justice in order that evidence of a relatively trifling character, though relevant and not expressly excluded by any arbitrary exclusionary rule, may not dominate the case, unduly prolong it, mislead or unfairly prejudice the jury, or work an unfair advantage because of surprise on collateral matters.’ (Gard, Kansas Code of Civil Procedure Annotated, § 60-445, p. 433.) “In State v. Whiters, 206 Kan. 770, 481 P.2d 992, we stated: ‘The admission of such evidence is always subject to the discretion of the court. . . .’ (p. 772.) “We think it is not amiss to continue the rule of necessity that the trial court has all the established powers inherent in its function to assure a fair trial. These powers include the duty to weigh the prejudicial value of evidence of past crimes against its probative value to prove some material fact. “The delicate balancing which the courts must continually perform has been written about at length. One such treatise will suffice to illustrate the problem: ‘A basic rule of evidence, universally recognized, and continually applied, is that evidence even though relevant, should be excluded if its probative value is substantially outweighed by the risk that its admission will cause undue or unfair prejudice, confusion of the issues, misleading of the jury, undue delay or waste of time, or needless presentation of cumulative evidence. . . .’ (1 Jones on Evidence, 6th ed., Relevancy, § 4.6, p. 392.) “The duty of the court to protect defendants from unduly prejudicial evidence is well stated in State v. Goebel, 36 Wash. 2d 367, 218 P.2d 300 (1950): We have intentionally used the phrase “may be admitted” because we are of the opinion that this class of evidence, where not essential to the establishment of the state’s case, should not be admitted, even though falling within the generally recognized exceptions to the rule of exclusion, when the trial court is convinced that its effect would be to generate heat instead of diffusing light, or, as is said in one of the law review articles above referred to, where the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it. This is a situation where the policy of protecting a defendant from undue prejudice conflicts with the rule of logical relevance, and a proper determination as to which should prevail rests in the sound discretion of the trial court, and not merely on whether the evidence comes within certain categories which constitute exceptions to the rule of exclusion. We repeat again a particularly apropos statement from Shepard v. United States, [290 U.S. 96, 78 L. Ed. 196, 54 S. Ct. 22 (1933)], referring to the rules of evidence: ‘When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.” (p.379.) “In Vernon’s Kansas Statutes Annotated, Rules of Evidence, § 60-455, p. 376, it is stated there are at least three types of prejudice which might result from the use of other crimes as evidence: ‘. . . First, a jury might well exaggerate the value of other crimes as evidence proving that, because the defendant has committed a similar crime before, it might properly be inferred that he committed this one. Secondly, the jury might conclude that the defendant deserves punishment because he is a general wrongdoer even if the prosecution has not established guilt beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury might conclude that because the defendant is a criminal, the evidence put in on his behalf should not be believed. . . 213 Kan. at 56-58. Applying these principles, the court concluded as follows: “Defendant’s conviction was based on the testimony of Phillips. He testified he purchased heroin from defendant on the dates charged in the information. Over objection, he also testified to the purchase of heroin on two prior occasions. The reliability of Phillips’ testimony cannot be predicated on how many purchases he made. The credibility given his testimony as to purchases charged in the information cannot be enhanced by his testimony as to prior purchases. The probative value of the prior purchases must be tested by the same factors that determine the reliability of his testimony on the crimes charged. What we are saying is that the probative value of the testimony of Phillips as to prior purchases is questionable. The prejudicial result of the testimony is not questionable. It could result in one or all of the possibilities of prejudice we have heretofore outlined. The probative value of testimony is substantially outweighed by the risk that its admission will cause undue and unfair prejudice. We conclude the admission of this evidence was reversible error and a new trial should be ordered.” 213 Kan. at 59. We agree that, based on Davis, the evidence of prior drug sales by Prosper was not admissible under K.S.A. 60-455. However, Davis and the present case were decided on different legal grounds. In Davis, the evidence was erroneously admitted under K.S.A. 60-455. Here, the Court of Appeals correctly concluded that the evidence of prior drug sales was admissible independent of 60-455. 21 Kan. App. 2d at 958. The Court of Appeals quoted the following passage from State v. Jones, 247 Kan. 537, 547, 802 P.2d 533 (1990): “ “We have recognized several instances where evidence of prior crimes or civil wrongs maybe introduced into evidence independent of K.S.A. 60-455, including evidence to establish the relationship or continuing course of conduct between a defendant and the victim. Evidence of prior acts of a similar nature between a defendant and a victim is admissible independent of K.S.A. 60-455 if the evidence is not offered for the purpose of proving distinct offenses but, rather, to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness as to the act charged.’ ” 21 Kan. App. 2d at 958. The Court of Appeals then reasoned: “Although Jones is couched in terms of evidence to show connections between the defendant and a victim, the same rationale has been applied in cases involving a drug seller and his customer. See State v. Glazer, 223 Kan. 351, 360-61, 574 P.2d 942 (1978); State v. Solem, 220 Kan. 471, 476, 552 P.2d 951 (1976); Maxwell, 10 Kan. App. 2d at 67. “The testimony elicited from Senigaur disclosed an ongoing series of contacts related to drugs between Prosper and Senigaur. These contacts eventually led to the transaction in question. Senigaur’s testimony about prior drug transactions showed the relationship between Prosper and Senigaur and revealed how Senigaur was able to buy cocaine from Prosper on January 11, 1994. The evidence was thus admissible independent of 60-455, and the district court did not err in admitting the testimony.” 21 Kan. App. 2d at 958. In particular, Senigaur’s testimony explained how Senigaur was able to show up at Prospers apartment without making prior arrangements, gain entry, purchase cocaine, and be on his way within a few minutes. Senigaur testified that he typically bought drugs from Prosper either at the apartment or at 1025 Sylvan Street and that he typically “just dropped by unannounced.” Although Prosper’s argument that the evidence of prior drug sales was inadmissible under K.S.A. 60-455 does not affect the result reached by the Court of Appeals, it has merit, and, in adopting the Court of Appeals’ opinion, we delete the language indicating that the evidence would be admissible under K.S.A. 60-455. The judgment of the Court of Appeals affirming the district court is affirmed as modified. The judgment of the district court is affirmed.	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It Is Therefore Ordered that George E. Scamman be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked. It Is Further Ordered that the Clerk of the Appellate Courts strike the name of George E. Scamman from the roll of attorneys licensed to practice law in Kansas. It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1995 Kan. Ct. R. Annot. 222).	[ -112, -22, -68, 61, 10, -32, -78, -101, 73, -29, 55, 83, -19, -34, 5, 127, -46, 109, -79, 105, -43, -73, 127, -64, 34, -5, -47, -43, -72, 95, -26, -3, 73, 48, 66, 21, 6, -54, -119, -100, -114, 0, 9, -4, 91, -115, -76, -87, 16, 11, 53, -65, -77, 42, 31, -24, -88, 44, -7, -23, 65, -111, -101, -107, 108, 83, -79, 4, 24, -123, 88, 63, -104, -101, 40, -8, 55, -90, -122, 116, 79, -7, 9, 102, 98, 49, 49, -91, -68, -84, 15, 120, -99, -89, -109, 88, 65, -119, -74, -35, 101, 16, 3, -4, -32, 13, 31, 40, 10, -49, -44, -77, -117, 87, -114, 25, -1, -26, 48, 85, -107, -12, 78, 71, 50, 31, -114, -27 ]
The opinion of the court was delivered by ABBOTT, J.: The defendant, Anthony D. Chiles, appeals the Sedgwick County District Court’s denial of his motion to correct an illegal sentence, pursuant to K.S.A. 22-3504, alleging that the Habitual Criminal Act, K.S.A. 21-4504 (Weeks), was improperly used to enhance his sentence and that he was improperly convicted of and sentenced for the crime of unlawful possession of firearm. The defendant contends that the sentence enhancement and the firearm conviction were improper because the underlying crime they were based upon was invalid as he was never informed of his rights before he pled guilty to the underlying crime. Jurisdiction is pursuant to K.S.A. 22-3601(b)(l). The underlying crime Chiles is attacking is aggravated robbery, to which he pled guilty on January 14, 1974. The sentence Chiles claims is illegal and seeks corrected was imposed on August 3, 1978, after a jury found him guilty of aggravated robbery, aggravated battery, and unlawful possession of a firearm after a previous felony conviction. The defendant appealed these convictions to this court, and the convictions were affirmed. State v. Chiles, 226 Kan. 140, 595 P.2d 1130 (1979). The defendant contends that the sentence enhancements and the firearm charge were improper because the underlying crime they were based upon, the 1974 conviction for aggravated robbery, was invalid. The defendant, contends that the conviction for the 1974 crime was invalid because he was not properly informed of the consequences of his guilty plea pursuant to the due process requirements under K.S.A. 22-3210 and Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969). In the 1974 underlying crime, the defendant signed an Advice of Rights, which informed him of. the following information: The crime he was charged with, the appointment of an attorney to represent him, the minimum and maximum penalties for the crime, his right to plead not guilty, his right to make the State prove his guilt under each element of the crime, the elements of the crime, tibe consequences of pleading guilty such as losing the right to a jury trial, die fact that a guilty plea must be voluntary, the district attorney’s statement that he would recommend the minimum sentence, and the fact that an SRDC evaluation could result in a reevaluation of his sentence. The Advice of Rights also stated that the defendant had not been “threatened, coerced or intimidated, in order to induce [him] to enter a plea of guilty,” nor had he been promised any benefit, immunity, or assurances of what the court might do should he plead guilty. The last paragraph of the Advice of Rights stated: “I [the defendant] am satisfied with the advice, recommendations, and representation which I have received from my attorney and I have decided to enter a plea of guilty, for I believe that a verdict of guilty would be the result of any trial and for the further reason that I am, in fact, guilty of the offense charged.” When the defendant entered his plea, he admitted that he had robbed Church’s Fried Chicken and that he had used a handgun in the crime. At this plea proceeding, the court informed the defendant of the maximum sentence. The court imposed the negotiated sentence recommended by the district attorney. The 1974 journal entry stated that the defendant had been informed by the court of the consequences of the guilty plea and of the maximum penalty provided by law. The journal entry also stated that the court determined the plea was voluntarily made with an understanding of the nature of the charge and the consequences of the plea and that there was a factual basis for the plea. In 1994, the defendant filed a motion to correct the illegal 1978 sentence, contending that the 1974 plea proceeding and the accompanying conviction, which two of the 1978 sentences and the 1978 firearm conviction were based upon, were invalid because he was not properly informed of the consequences of his guilty plea. In denying the defendant’s motion to correct an illegal sentence for his 1978 convictions and sentences based on the invalidity of his 1974 conviction, the district court found that the judge in 1974 substantially complied with 22-3210 and informed the defendant of the consequences of his plea by having the defendant sign the Advice of Rights. Finally, relying on State v. Morris, 254 Kan. 993, 1000, 869 P.2d 739 (1994), the court pointed out that thé defendant was attacking his 1974 plea 22 years after the plea was entered. Thus, the court denied the defendant’s pro se motion to correct an illegal sentence. The defendant appeals this ruling. The State challenges this court’s jurisdiction. We are satisfied we have jurisdiction. The jurisdictional issue is whether the time to file a notice of appeal is tolled when a motion is filed pursuant to K.S.A. 60-252 (motion to amend or set aside the judgment) or K.S.A. 60-259 (newly discovered evidence). There is not a criminal statute which concerns tolling of the time to file a notice of appeal. Thus, the court must look to civil procedure to determine if the defendant’s time to file this appeal was tolled. Under the civil procedure statute, K.S.A. 60-2103(a), the running of the time for appeal is tolled by a timely motion made pursuant to K.S.A. 60-252 or K.S.A. 60-259, and the full time for appeal is to be computed from the order granting or denying such motions. COLLATERAL ATTACK Relying on State v. Delacruz, 258 Kan. 129, 138, 899 P.2d 1042 (1995), the State contends that the defendant improperly seeks to collaterally attack the 22-year-old 1974 conviction for aggravated robbery. . > In Delacruz, the court addressed the circumstances in which a defendant may collaterally attack prior convictions which are used to enhance current sentences undef the Kansas Sentencing Guidelines Act. In Delacruz, the defendant pled guilty to one count of the sale of marijuana. The defendant’s Criminal history included three person misdemeanor báttery convictions which were rated as one person felony'conviction under K.S.A. 21-4711(a). The defendant also had three nonperson misdemeanor convictions of driving while suspended. Further, the defendant’s fourth charge of driving while suspended resulted in' a nonperson felony conviction for driving while Suspended as provided by K.S.A. 8-262. The defendant pointed out that all of the misdemeanor battery convictions and one of the. misdemeanor driving while suspended convictions were uncounseled. Further) the defendant contended that while he had counsel or waived his right to counsel for the other misdemeanor convictions of driving while suspended, these convictions still resulted from guilty pleas that were not knowingly entered. This court discussed the circumstances justifying collateral attack of a prior conviction. The defendant argued that even though some of his prior misdemeanor convictions for driving while suspended were counseled, the convictions were still invalid because the pleas wére ñot voluntary; thus, they should not be used to enhance his sentence for the current conviction. In analyzing this issue, the court relied on Custis v. United States, 511 U.S. 485, 128 L. Ed. 2d 517, 114 S. Ct. 1732 (1994). In Custis, the United States Supreme Court determined “whether a defendant in a federal sentencing proceeding may collaterally attack the validity of previous state convictions that are used to enhance his sentencing under the [Armed Career Criminal Act] (ACCA)]”. The Court held that,' under the ACCA, a defendant does not have a right to collaterally attack prior convictions unless the defendant’s prior convictions were obtained in violation of the right to counsel. 511 U.S. at 487. In analyzing this issue, the Court first found that the ACCA statutory language did not authorize collateral attacks. “The statute focuses on the fact of the conviction and nothing suggests that.the prior final conviction may be subject to collateral attack for potential constitutional errors” when the prior conviction is used to enhance a sentence. .511 U.S. at 490-91. However, the defendant argued that regardless of whether the ACCA statutory language permits collateral challenges of prior convictions, the Constitution requires that such collateral attacks be allowed. Again, the United States Supreme Court disagreed, stating: “Custis invites us to extend the right to attack collaterally prior convictions used for sentence enhancement beyond the right to have appointed counsel established in Gideon. We decline to do so. . . . [Tjhere has been a theme that failure to appoint counsel for an indigent defendant was a unique constitutional defect. Custis attacks his previous convictions claiming the denial of the effective assistance of counsel, that his guilty plea was not knowing and intelligent, and that he had not been adequately advised of his rights in opting for a ‘stipulated facts’ trial. None of these alleged constitutional violations rises to the level of a jurisdictional defect resulting from the failure to appoint counsel at all. [Citation omitted.] . “Ease of administration also supports the distinction. As revealed in a number of the cases cited in this opinion, failure to appoint counsel at all will generally appear from the judgment roll itself, or from an accompanying minute order. But determination of claims of ineffective assistance of counsel, and failure to assure that a guilty plea was voluntary, would require sentencing courts to rummage through frequently non-existent or difficult to obtain state court transcripts or records that may date from another era, and may come from any one of the 50 States. “The interest in promoting the finality of judgment provides additional support for our constitutional conclusion. As we have explained, ‘[i]nroads on the concept of finality tend to undermine confidence in the integrity of our procedures’ and inevitably delay and impair the orderly administration of justice. United States v. Addonizio, 442 U.S. 178, 184[, n.11., 60 L. Ed. 2d 805, 99 S. Ct. 2235] (1979). . . . These principles bear extra weight in cases in which the prior convictions, such as one challenged by Custis, are based on guilty pleas, because when a guilty plea is at issue, ‘the concern with finality served by the limitation on collateral attack has special force’ United State v. Timmreck, 441 U.S. 780, 784[, 60 L. Ed. 2d 634, 99 S. Ct. 2085] (1979).” 511 U.S. at 496-97. This court in Delacruz found that a “collateral attack on prior convictions . . . would force the sentencing court to look behind every conviction with practically no record to rely on.” 258 Kan. at 139. Thus, the defendant in Delacruz was not allowed to attack his prior misdemeanor convictions, used to enhance his current sentence, by alleging that the convictions were obtained after inadequate plea colloquies. 258 Kan. at 139. See also State v. Pierson, 222 Kan. 498, 504, 565 P.2d 270 (refusing to allow defendant to collaterally attack prior conviction which was used to enhance current sentence by alleging that the guilty plea in the prior conviction was not understandingly and voluntarily entered, especially when prior conviction was final before the rules governing proper guilty pleas were promulgated), cert. denied 434 U.S. 868 (1977); State v. Likins, 21 Kan. App. 2d 420, 433, 903 P.2d 764 (because the defendant was advised of his right to counsel and properly waived that right, the court refused to allow the defendant to collaterally attack the prior conviction which was used to enhance the severity of the current crime by alleging that the guilty plea in the prior conviction was invalid), rev. denied 258 Kan. 861 (1995). Both Custis and Delacruz focus on whether a defendant has a constitutional right to collaterally attack a prior conviction which is used to enhance a current sentence. This analysis should also apply to whether the defendant has a constitutional right to collaterally attack a prior conviction used as an element in a current crime, e.g., felon in possession of a firearm. The policy reasons behind the Custis and Delacruz decisions in the sentence enhancement cases — ease of administration and finality of judgment — should also apply to cases which use prior convictions as an element of a crime. For instance, the statute which the defendant was convicted under, unlawful possession of a firearm, K.S.A. 21-4204 (Weeks), punishes a person who possesses a firearm within 5 years after the person has been convicted of a felony in Kansas or any other jurisdiction or released from imprisonment for a felony. Thus, if a defendant is allowed under the Constitution to collaterally attack the underlying felony when charged with this crime, then the court ruling on the firearm charge would be required to look behind the underlying conviction, which could have occurred in any other state, and determine if it was valid. This does not make good policy. Instead, the time for a defendant to attack the underlying convic tion is on an appeal when originally convicted of the underlying crime or in a habeas corpus proceeding. See Custis, 511 U.S. at 497; Delacruz, 258 Kan. at 137. This is especially true here because the 1974 underlying conviction for aggravated robbery which the defendant wishes to collaterally attack as an element of the 1978 crime is a result of the guilty plea. See 511 U.S. at 497. (“These principles bear extra weight in cases in which the prior convictions . . . are based on guilty pleas, because when a guilty plea is at issue, ‘the concern with finality served by the limitation on collateral attacks has special force.’ ”) Thus, the rule under Custis and Delacruz should also apply to collateral attacks of a prior conviction used as an element of a current crime as well as collateral attacks of a prior conviction used to enhance a current sentence. The statute used to enhance the defendant’s sentences for the 1978 aggravated robbery and aggravated burglaiy convictions is the Habitual Criminal Act, K.S.A. 21-4504 (Weeks). It states: “Every person convicted a second or more time of a felony, the punishment for which is confinement in the custody of the director of penal institutions, upon motion of the prosecuting attorney, may be by the trial judge sentenced to an increased punishment as follows: (1) If the defendant has been previously convicted of not more than one felony: (a) The court may fix a minimum sentence of not less than the least nor more than twice the greatest minimum sentence authorized by K.S.A. 1972 Supp. 21-4501 for the crime for which the defendant stands convicted: and (b) Such court may fix a maximum sentence of not less than the maximum provided by K.S.A. 1972 Supp. 21-4501 for such crime nor more than twice such maximum. (4) In the event that any portion of a sentence imposed under . . . [subsection] (1) . . . of this section, is determined to be invalid by any court because a prior felony conviction is itself invalid, upon resentencing the court may consider evidence of any other prior felony conviction that could have been utilized under . . . [subsection] (1) . . . of this section, at the time the original sentence was imposed, whether or not it was introduced at that time, except that if the defendant was originally sentenced as a second offender, he shall not be resentenced as a third offender. “A judgment maybe rendered pursuant to this section only after the court finds from competent evidence the fact of former convictions for felony committed by the prisoner, in or out of the state.” As in Custis, this statute focuses on the fact of conviction and does not allow a prior conviction to be subject to collateral attack. The following language in subsection (4) — “In the event that any portion of a sentence imposed under . . . [subsection] (1) . . . of this section, is determined to be invalid by any court because a prior felony conviction is itself invalid” does not authorize a collateral attack on a prior conviction used to enhance a sentence. Instead, the legislature intended to indicate that if a prior conviction was found invalid under a collateral attack for the reason allowed by the Constitution that the defendant was not represented by counsel or did not knowingly waive counsel at the prior conviction, then the court can consider other valid prior crimes of the defendant at the resentencing to insure that the defendant’s sentence remains enhanced. See State v. Daegele, 206 Kan. 379, 382, 479 P.2d 891 (1971). Further, in State v. Pierson, 222 Kan. at 504, the defendant was convicted of two counts of aggravated robbery, and the defendant’s sentence was enhanced under the Habitual Criminal Act, K.S.A. 1973 Supp. 21-4504, which is identical to the statute used to enhance the sentences at issue. One of the underlying convictions used to enhance the defendant’s sentence was a conviction for second-degree robbery which the defendant pled guilty to in 1964. The defendant collaterally attacked this 1964 underlying conviction, thereby alleging that the sentence enhancement was improper. As tire Pierson court pointed out, the defendant did not deny that he was represented by counsel at the underlying conviction. Instead, the defendant contended that his guilty plea in the underlying conviction was not understandingly and voluntarily obtained as required by due process pursuant to Boykin v. Alabama, 395 U.S. 238, and Henderson v. Morgan, 426 U.S. 637, 49 L. Ed. 2d 108, 96 S. Ct. 2253 (1976). While not directly addressing whether the enhancement statute authorized a collateral attack of previous convictions, the court refused to allow the defendant to do so. The court stated: “Both Boykin and Henderson involved direct attacks upon the challenged plea. Neither involved a collateral attack on prior convictions used by a sentencing court in another state to enhance punishment. We find the contention of the defendant here without merit. Every reasonable presumption in favor of the validity of a judgment should be indulged where there is nothing in the record to support allegations of irregularity. [Citation omitted.]” 222 Kan. at 504. Furthermore, this court does not permit a collateral attack within a collateral attack. The time to attack the 1974 conviction, if allowed by statute at all, was at the 1978 sentencing or on a direct appeal of the 1978 sentencing. See Delacruz, 258 Kan. at 137. The next question is whether the defendant had a right under the Constitution to collaterally attack the prior 1974 conviction which was used to enhance two of his 1978 sentences and used as an element in the 1978 firearm conviction. Under the Constitution, a defendant does not have a right to collaterally attack a prior conviction unless the defendant’s prior conviction was obtained in violation of the right to counsel. Custis, 511 U.S. at 494; Delacruz, 258 Kan. at 139. Here, the defendant was clearly represented by counsel at the 1974 conviction when he pled guilty to aggravated robbery. The record shows that an attorney was appointed to represent the defendant during prosecution of the charge. This attorney filed an alibi witness notice, pursuant to K.S.A. 22-3218 (Weeks), and filed a motion for discovery. The journal entry of judgment states that a defendant and his court appointed attorney appeared at the plea proceeding. Finally, the transcript indicates that the defendant’s attorney was present at the plea proceeding and spoke on the defendant’s behalf. Thus, because the defendant was represented by counsel at the 1974 plea proceeding, he does not have a constitutional right to collaterally attack this 1974 prior conviction, which was used to enhance two 1978 sentences and used as an element in the 1978 firearm conviction. Finally, the defendant contends that his pro se motions challenging the 1978 sentences should be viewed as K.S.A. 60-1507 motions. The motions which the defendant used would have provided his requested relief -if they had been granted. Thus, re-naming the motions as 60-1507 motions is not necessary. Nonetheless, the defendant contends that his action, viewed as 60-1507 request for relief, was sufficient to require appointment of counsel and a hearing pursuant to K.S.A. 60-1507(b) and Wright v. State, 5 Kan. App. 2d 494, 619 P.2d 155 (1980). Thus, the defendant contends that the trial court erred in summarily denying his request for relief. Under Wright and 60-1507(b), a hearing should be granted unless the motion, files, and records of the case conclusively show that the movant is not entitled to any relief. Here, the record does conclusively show that the defendant was not entitled to any relief; thus, the trial court did not err in summarily denying the defendant’s motions. Affirmed.	[ -48, -20, -3, -65, 58, 96, 42, 28, 32, -77, -25, 115, -87, 74, 20, 121, -5, 45, 84, 121, -50, -77, 23, 65, 50, -77, -47, -41, 51, 91, -12, -43, 76, -64, 74, 117, 102, -54, 39, 28, -114, 4, -119, -48, -39, 10, 52, 107, 54, 22, -79, -98, -13, 42, -98, -30, 8, 41, 75, 44, -64, -8, -37, -115, 109, 2, -77, -92, -102, 7, 120, 54, -104, 49, 0, -24, 123, -122, -126, -12, 109, -103, -84, 102, 66, 33, 125, -17, 44, -119, 14, 127, -99, 38, -104, 80, 108, 45, -106, -99, 60, 22, 46, -16, -17, 12, 53, 108, -113, -38, -72, -109, 77, 112, 2, -13, -5, -91, -112, 113, -49, -90, 92, 115, 120, -65, -82, -108 ]
The opinion of the court was delivered by Wedell, J.: This was an action to recover damages for breach of contract. The trial court struck certain allegations from the answer of the defendant, Kanwa Oil, Incorporated, in response to plaintiff’s motion. The plaintiff was O. J. Connell, Sr. He died after the appeal was perfected and the action has been revived in the name of O. J. Connell, Jr., administrator of his father’s estate. Two other corporations were the owners of a producing oil and gas lease in Russell county. They are not parties to this action. The defendant, Kanwa Oil, Incorporated, a foreign corporation, owned an overriding royalty interest of one-eighth of eight-eighths of the oil, gas and casinghead gas produced, saved and sold from the leased premises. At the time the instant contract was entered into there were three producing wells on the lease. One was producing from the Topeka limestone and the other two were producing from the Kansas City limestone. Appellee agreed to purchase and appellant agreed to sell to him an undivided three-fourths interest in the overriding royalty for the consideration and upon the terms and conditions set forth in their contract. The pertinent part of the contract involved provided: “1. Connell agrees that he will cause the owners of the working interest in the oil and gas lease covering said real estate to commence operations within ninety days from this date for deepening said Topeka Limestone well to the Kansas City Limestone, and to prosecute such operations with reasonable diligence until said well has been so completed to a depth sufficient to test the Kansas City Limestone, and to properly equip and complete said well in the Kansas City Limestone if oil or gas in paying quantities is encountered therein. If said well is not so deepened within the time and in the manner herein provided, this contract shall be and become null and void and. no longer binding on either party hereto. “2. As a further and additional consideration, Connell agrees to cause the owners of the working interest in said oil and gas lease to commence operations for the drilling of Well No. 4 on said leasehold, the same to be an offset to the producing well adjoining the above described real estate on the north, on or before October 15, 1945, and if operations for the drilling of said well are not commenced on or before said date, this contract shall be and become null and void and no longer binding on either party hereto. “3. If Connell shall have caused said Well No. 1 to be deepened and operations for the drilling of said Well No. 4 to be commenced in accordance with the foregoing provisions, then as soon as said Well No. 4 is spudded, Kanwa shall execute, acknowledge and deliver to Connell a good and sufficient assignment of and for an undivided %ths interest in and to Kanwa’s said overriding royalty, with full covenants of warranty, and Connell shall, upon receipt of such assignment, pay Kanwa the sum of $1,000.00 in cash. Said assignment shall be effective as of the date said Well No. 4 is spudded, and Kanwa shall, in addition to said assignment, execute and deliver an appropriate transfer order on the form of the pipe line company purchasing the oil from said premises. “4. The covenants hereof shall be available to and binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns.” The petition, insofar as now pertinent, in substance alleged: Plaintiff had fully performed the contract; the wells mentioned in the contract were producing oil in paying quantities; the wells had been fully equipped; plaintiff was entitled to an assignment effective as of September 24, 1945, the date well No. 4 was spudded in; plaintiff tendered the sum of $1,000 to defendant; the defendant failed, neglected and refused to execute and deliver the assignment; defendant was a nonresident and plaintiff was unable to obtain service on it and to secure specific performance of the contract; the market value of plaintiff’s contractual interest was $25,000 and plaintiff was damaged in that amount by reason of defendant’s breach of contract. The answer was quite lengthy. We do not deem it necessary to set forth verbatim all the allegations which were stricken. The principal portion of the answer which was stricken and on which appellant appears to rely mostly was the following: “For further answer herein, defendant avers that the alleged agreement attempted to be sued upon by the plaintiff herein is a unilateral agreement and unenforceable, for the reason that said alleged agreement is without consideration and does not purport to obligate the plaintiff to perform the same, or any part thereof, and that if said alleged agreement in anyway constitutes a valid contract between the parties thereto, which the defendant does not admit, but specifically denies, that the same constitutes nothing more than an option, which said option the plaintiff failed and neglected to exercise.” Was the transaction unilateral and therefore unenforceable? The transaction was based on mutual promises. Where the consideration is merely a promise for a promise all parties to the agreement must, of course, be bound thereby to make it enforceable. It is true appellee was not bound to perform. He did, however, perform and thereafter its provisions became mutual and binding. In other words, the promises thereafter ripened into a binding contract. (Brick Co. v. Bailey, 76 Kan. 42, 90 Pac. 803.) Appellant argues the contract was at most an option. Assuming that was originally true, it is the very essence of an option contract that one party has the choice of concluding or not concluding a proposed transaction while the other party has no choice. It is the right of such choice for which a party receiving an option pays. (Brick Co. v. Bailey, supra, p. 46, 47; Rolander v. Sanderson, 141 Kan. 809, 812, 43 P. 2d 1061.) Where a party exercises an option by performance which benefits the other party the latter manifestly cannot repudiate the deal on the ground it was originally unilateral. Under the terms of this instrument and the admitted performance thereof by appellee the allegation in defendant’s answer that plaintiff failed to exercise his option was not admitted by the motion to strike. That motion was tantamount to a demurrer. A demurrer never admits naked conclusions but only facts well pleaded. Under this instrument appellee, in order to exercise his rights, was not obliged to make a demand for the assignment. It was the duty of appellant to execute and deliver the assignment when appellee performed. It was only after the assignment was executed and delivered by appellant that appellee was required to pay the $1,000 stipulated. Only lack of performance could defeat appellee’s right to the assignment. The trial court struck allegations from the answer that both prior to and after the execution of the written agreement plaintiff had stated he would keep defendant informed as to the progress and results of deepening operations on well No. 1 and as to the date of spudding well No. 4; that such statements were relied upon and the agreement would not have been made without such promises. The promises, if made, pertained to things to be done in the future. They did not constitute misrepresentations of present facts. They added something not contained in the written instrument. All alleged prior representations are presumed to have been merged in the written contract. The answer alleged no additional and independent consideration for the alleged subsequent oral promises. The representations, if made, could not well form the basis for repudiation on the ground of fraud in this case. Irrespective of what appellee’s performance disclosed with respect to production, it could not have relieved appellant from making the assignment on the date the contract specified. Assuming appellee made such promises, appellant alleged no facts disclosing in what manner it was prejudiced by appellee’s failure to keep them. There are, of course, instances where evidence of oral fraudulent representations which induced the making of a contract may be shown. Under the circumstances here presented it was not reversible error to strike the allegations. Appellant argues the court should not have stricken allegations that the owners of the lease had mortgaged the leasehold estate and that under the terms of the mortgage the owners were'required to develop the lease in any event and that no contract with appellee for its development was required. We fail to comprehend the materiality of that portion of the answer. It was a contract between the owners of the lease and the mortgagee and not with appellee. Moreover, the terms of the instant contract were not the same as those between the owners of the lease and the mortgagee. We do not see how the order to strike such allegations deprived appellant of a substantial defense. If the ruling were reviewable at all we could not now conclude it constituted an abuse of sound judicial discretion. Did the court err in striking further allegations in the answer that appellant made no demand for an assignment until after well No. 4 had been completed and the value of the overriding royalty had been determined and that such delayed demand constituted fraud, laches and speculative delay? Appellee, as already stated, was under no duty to make any demand for the assignment and the order striking such allegations cannot be regarded as prejudicial to appellant. Nor, in view of what already has been stated, can it be said the court erred in striking allegations that the agreement was ambiguous and indefinite and that it had been construed by the parties as constituting merely an option to be exercised when well No. 4 was spudded in. These are the principal points raised on appeal. It is doubtful that some of the rulings treated are reviewable. In any event, if reviewable, we think no reversible error is shown to have resulted from the rulings. The allegations retained in the answer appear quite adequate to raise every proper defense available to appellant. In the event the trial should develop the materiality of any matters which have been stricken we must, and do, assume the trial court will properly rule thereon as the circumstances arise. At this stage of the proceedings the rulings must be affirmed. It is so ordered. Cowan, J., not participating.	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The opinion of the court was delivered by Wedell, J.: This action was instituted in the city court of Topeka to obtain possession of a residence building and to. recover unpaid rent. The complaint, in substance and insofar as now material, alleged: The defendant peacefully entered the dwelling house; she was indebted to plaintiff for rent in the sum of $120; notice to quit was served for nonpayment of rent; defendant refused to surrender possession and unlawfully detains it. The prayer was for possession and for a money judgment in the sum of $120. For her answer the defendant denied plaintiff’s right to possession, that she was a tenant and indebted for rent and alleged she had been in possession of the premises since 1918 and was now the owner thereof. ' She prayed that the action be certified to the district court and that procedings be had in accordance with the provisions of G. S. 1935, 61-107; that she be permitted to file pleadings in the district court praying for affirmative relief. The answer was verified in conformity with the requirements of G. S. 1935, 61-107. Plaintiff made no objections in the city court to the certification of the action to the district court. In the district court defendant filed a verified answer and cross petition. The answer was substantially the same as that filed in the city court. In the cross petition defendant, in substance, alleged: She inherited the property from her mother in 1937; on her mother’s death plaintiff moved into the property with her and they have lived together as man and wife at all times except during the period plaintiff was in the military service from 1943 to July 3, 1946; when plaintiff returned from the service he again came to live with the defendant as her husband; at the time plaintiff first moved into the premises with the defendant there was a mortgage on the property; plaintiff told the defendant they would live together as man and wife and he would provide and pay for her living expenses; in 1939 she became ill and was confined for a period of approximately eight months; while she was incapacitated plaintiff fraudulently took advantage of her and procured her signature to certain writings without paying any consideration therefor; plaintiff fraudulently represented the writings were merely a matter of form but were necessary to enable the plaintiff to continue making payments on the mortgage; defendant believed and relied upon the false and fraudulent representations; plaintiff filed the instant action on June 3, 1947; it was then that defendant discovered the instrument she had signed in June, 1939, was a warranty deed to the plaintiff and that it was filed for record; defendant did not know of the deed and therefore alleged she did not execute or acknowledge the same. Defendant prayed the deed be declared void and that she be awarded such further relief as seemed just and equitable in the premises. To the answer and cross petition plaintiff filed a lengthy verified reply in which he denied all allegations of defendant’s ownership and right to possession, all allegations of cohabitation and that he took any advantage of the defendant in obtaining a deed to the property. Plaintiff’s reply, in substance, further alleged: Defendant obtained title to the property from her mother by inheritance and voluntarily conveyed it to him subject to an existing mortgage in the sum of $392.27; defendant was unable to pay the installments due on the mortgage and conveyed the property to the plaintiff in order that he might obtain an extension agreement and pay off the mortgage consisting of the principal and accumulated interest in the sum of $555.28; he later paid the mortgage and defendant did not contribute to the payment thereof; during defendant’s illness she was unable to pay rent and plaintiff voluntarily relinquished claims for rent during that period; while plaintiff was in the service defendant paid the rent to the Neiswanger Investment Company in the sum of $10 per month and continued to do so until May 7, 1946, when she refused to continue the payments; plaintiff had made improvements on the premises valued at $1,200 and defendant had not contributed thereto nor paid anything towards repairs, maintenance or taxes. With the issues thus joined the action came on for trial. After plaintiff’s counsel had three exhibits identified by the court reporter he orally demurred for the first time to defendant’s cross petition. The ground of the demurrer was that the district court was without jurisdiction to try and determine any matter contained in the cross petition. Neither the demurrer nor the record otherwise discloses the theory on which it was claimed the court lacked jurisdiction. It was overruled. The* action was fully tried to the court without a jury on all issues joined by the pleadings. Counsel for the respective parties requested the court to make findings of fact and conclusions of law. Counsel for both parties filed briefs covering the issues. Counsel for both parties made requested findings of fact and conclusions of law. The court took the decision under advisement and in due time made its own findings of fact and conclusions of law and rendered judgment in favor of the defendant. The precise nature of the judgment will be stated later. Counsel for plaintiff moved to have the judgment set aside and to have judgment rendered in his favor. All portions of the foregoing motions involved the merits of the action. When plaintiff’s motion for judgment was overruled he moved for a new trial. After these various adverse rulings to plaintiff’s motions it appears additional counsel was engaged by plaintiff, who later argued the case in this court. A motion was filed in the district court to remand the case to the court of Topeka on the ground the latter court lacked authority and jurisdiction to certify the case to the district court and that the district court had no authority or jurisdiction to accept the certification and that all acts of the latter court were null and void. The motion was overruled. Plaintiff has appealed from the judgment and all adverse orders and rulings. G. S. 1935, 61-107, the statute pursuant to which the instant action was certified to the district court, reads: “If in any action commenced before a justice it appears to the satisfaction of the justice that the title or boundary of land is in dispute in such action, said action shall be stayed before said justice, and said justice shall within ten days thereafter certify said case and transmit all papers and process therein to the clerk of the district court of his county, and said case shall be docketed and thereafter proceeded with in the district court as if originally commenced therein. The justice before whom said action is commenced shall require of the defendant setting up said title or boundary, to set forth in his answer or bill of particulars a full and specific statement of the facts constituting his defense of said title or boundary brought in question; and the defendant shall be required to make affidavit of the truthfulness of the statements in his said answer or bill of particulars contained, and that said defense is bona fide and not made for vexation or delay, but for the promotion of justice.” (Our emphasis.) Appellant contends this certification statute does not apply to forcible entry and detainer cases. He insists such cases involve special summary proceedings to determine only the right to possession of real estate and are not actions. The question is did the legislature intend to make the statute applicable to forcible entry and detainer cases in which it appeared to the satisfaction of the justice of the peace that not only the question of right to possession but the question of title or boundary of land was in dispute. It will be observed the statute says “If in any action. . . .” (Our emphasis.) G. S. 1935, 61-102 provides that “justices of the peace shall have original jurisdiction in civil actions . . . and . . . “Second. To try the action for the forcible entry and detention, or detention only, of real property.” (Our emphasis.) G. S. 1935, 61-108 states the actions of which justices shall not have cognizance. One of them is “actions in which the title to real estate is sought to be recovered, or may be drawn in question.” (Our emphasis.) G. S. 1935, 61-1303, which pertains expressly to forcible entry and detainer cases,, also employs the word “action.” G. S. 1935, 61-1309 refers to such a proceeding as an action when brought for possession and for nonpayment of rent. G. S. 1935, 61-1011 provides for the giving of bond “In appeals taken by the defendant in actions for the forcible entry and detention or forcible and unlawful detention of real property. . . .” (Our emphasis.) It is true it has been said that an “action of forcible entry and detainer is a special statutory proceeding, summary in its nature . . .” and that “. . . the statute conferring jurisdiction must be strictly pursued in the method or procedure prescribed by it, or the jurisdiction will fail to attach. . . .” , (Bell v. Dennis, 158 Kan. 35, 37, 144 P. 2d 938.) Such a proceeding, however, is ordinarily referred to as an action in both statutes and decisions. See cases cited in the Bell case, p. 37. Many other similar cases might be cited. So in Hale v. Brown, 119 Kan. 303, 239 Pac. 963, it was said: “He first argues that forcible entry and detainer is an action criminal in its nature, where a verdict of guilty or not guilty has to be returned, and he calls attention to the statute pertaining thereto (R. S. 61-1310), and argues that no right of appeal is provided for on plaintiff’s behalf. The proceeding, while peculiarly statutory and summary in its nature, is and for several centuries has- been a civil action,- although in ancient times it was otherwise.” (p. 304.) While forcible entry and detainer cases do in a sense constitute special proceedings we think in view of the entire statute and statutes in pari materia, we would not be giving effect to the intended purpose of the statute by holding it was intended to. exclude forcible entry and detainer actions. In fact, in our opinion it is clear the statute indicates it was intended to embrace such actions. Appellant insists that when in such cases it appears in the justice court that title or boundary of land are involved the action must be dismissed, citing Bramwell v. Trower, 92 Kan. 144, 139 Pac. 1018. Dismissed by what court? In order to avoid confusion of thought it is highly important to observe first that there was an appeal to the district court by the defendant in the Bramwell case and that it was held to be the duty of the district court to dismiss the appeal. The next important point to observe is the reason for holding the district court should dismiss the appeal. The reason was that a justice of the peace had original jurisdiction in forcible entry and detainer cases only for one purpose, namely, to determine the right of possession. The district court, on an appeal in such a case, hears the case as a justice of the peace and, therefore, has no greater jurisdiction than the justice of the peace had. It follows that when the question of title was raised on appeal in the district court that court could not pass on the question of title. Therefore, it was held the appeal should be dismissed by the district court and the parties left to litigate the question of title in some more suitable form of action. The justice of the peace has no jurisdiction to try a question of title (G. S. 1935, 61-107; 61-108) but it can determine the simple issue and only the issue of right to possession. (G. S. 1935, 61-1301, 61-1302.) In McCracken v. Wright, 159 Kan. 615, 157 P. 2d 814, we held: “Upon appeal from a justice of the peace court a district court acquires only the limited jurisdiction of the justice of the peace and cannot, in forcible entry and detainer cases, determine an ultimate question of title to real estate. In such cases title can be considered only as an incident to the right of immediate possession.” (Syl. ¶ 1.) Considerable confusion has arisen relative to the duty of justices of the peace to dismiss forcible entry and detainer actions when it appears title or the boundary of land are involved. Prior to 1870 it was the duty of a justice of the peace, upon such disclosure, to dismiss the action. (Laws 1868, ch. 81, § 7.) That law was repealed by the laws of 1870, ch. 88, § 2, and the instant statute, G. S. 1935, 61-107, was enacted which provides for certification of any action to the district court when title or boundary of land are shown to be in dispute. The question then arises what was the purpose and intent of enacting the last mentioned statute? Careful consideration of the question causes us to conclude the lawmakers intended to accomplish a definite purpose thereby. They apparently realized that where only the right to possession of real estate was involved the law already provided a speedy procedure for the determination of that question in the justice court. No continuance could then, or can now, be granted for a longer period than eight days unless a designated bond is filed by the defendant. (G. S. 1935,” 61-1308.) The law provides for the right to take exception to the opinion of the justice of the peace upon questions of law involving the right of possession. (G. S. 1935, 61-1312.) The lawmakers also knew that the law already provided for a speedy appeal by a defendant in cases involving only the right to possession. (G. S. 1935, 61-1010, 61-1011.) The bond required was for double the value of the use and occupation of the property and for all damages and costs that might be awarded against him. Therefore, the lawmakers knew a complete summary procedure- existed in the justice courts and for appeals to the district court in cases involving the single issue of possession. But what speedy remedy existed in forcible entry and detainer cases in justice courts where it became apparent that the title or boundary of land was involved? As already indicated the justice of the peace could not determine those questions and the district court could not on appeal determine those issues over which the justice of the peace had no jurisdiction. Instead of the old law which required a justice of the peace to dismiss such an action the lawmakers provided for the certification of such an action together with the complete records to the clerk of the district court. It further directed such actions should be docketed and proceeded with in the district court “as" if originally commenced there.” In order to prevent a defendant from raising a false issue of title or boundary to land and thereby delaying prompt action in a summary proceeding in the justice court designed to determine only the issue of possession the legislature inserted some definite requirements. The statute requires a complete disclosure by the defendant of the facts on which the defense of title or boundary to land is asserted. In addition thereto the statute requires verification of the truthfulness of such statements and of the fact that such “defense is bona fide and not made for vexation or delay, but for the promotion of justice.” It may be that even these precautionary measures may not prevent abuse of the statute.' If, however, they should not produce the desired results it is a matter of legislative and not of judicial concern. In conformity with the views herein expressed this court in Stevens v. McDowell, 151 Kan. 316, 98 P. 2d 410, held: “When in the course of proceedings in forcible detainer in a city court for the summary recovery of the possession of real property it clearly appears that the title to the property is in dispute, the proceedings should be stayed in that court and the cause should be certified to the district court for adjudication.” (Syl. ¶ 1.) Appellant frankly admits the decision in the Stevens case but asserts that decision is contrary to our previous decisions in Armour v. Howe, 62 Kan. 587, 64 Pac. 42; Packing Co. v. Howe, 68 Kan. 663, 75 Pac. 1014, and to our approval of the first Howe case in Ohio Hydrate & S. Co. v. H. W. Underhill C. Co., 141 Kan. 213, 40 P. 2d 337. The last mentioned case did not involve forcible entry and detainer. The interpretation of the instant statute was not before us in .that case. An appeal was taken from the judgment of the district court in which that court had no jurisdiction by reason of the filing of a defective appeal bond. Appellant, however, is correct in stating that in the Howe cases it was held the certification statute was not applicable to actions of forcible entry and detainer and that the district court could obtain jurisdiction thereof only by an appeal from the judgment of the justice or city court. On that particular point we think the decisions in the Howe cases and in any others to the same effect are unsound and they are overruled. Appellant next urges if G. S. 1935, 61-107 is applicable to forcible entry and detainer cases the statute does not change the nature of the case in the district court but changes only the forum. He insists the case should have been tried in the district court only as a possessory action. We cannot agree. The answer in the court of Topeka clearly set up the. defense of title. The statute says when it appears to the satisfaction of the justice that title or boundary of land is in-dispute the action shall be stayed before the justice and shall be certified to the clerk of the district court. It further provides the action “shall be docketed and thereafter proceeded with in the district court as if originally commenced therein.” It could not well be argued the district court did not have jurisdiction, of the parties. They all filed pleadings which- joined issues on all. questions involved. There can be no doubt the district court would -have had general jurisdiction, of the entire subject matter involved and to render whatever relief was proper under the issues had the action been commenced originally in that court. We have no hesitancy in concluding the district court had jurisdiction and power to render such judgment as the facts under law and equity required. Moreover, parties are not ordinarily permitted to voluntarily submit all issues embraced by pleadings they have filed, try those issues and then object to the determination thereof when the decision turns out to be adverse to their contentions. (McConnell v. Rhone, 128 Kan. 446, 450, 279 Pac. 4.) The court found appellant obtained the deed from appellee by means of misrepresentations they were husband and wife. The parties are colored people. The appellant is a minister. The court also found appellant advised appellee that “. . . in the eyes of God they were already married,” although no formal vows or marriage ceremony had occurred. There was ample testimony to support the findings of false and fraudulent representations. Appellant contends the first mentioned finding of the court was outside the issues and argues the cross petition alleged the deed was executed while and by reason of appellee’s illness and incapacity. The contention is too technical. The cross petition alleged appellee relied upon all the false and fraudulent representations. The testimony supported the allegation. We do not find that the judgment is being challenged on the ground any of its terms or provisions are illegal or inequitable in character. We need, therefore, not treat that subject. It may, however, be said if that subject were before us we probably would be obliged to affirm its provisions. The judgment is affirmed.	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The opinion of the court was delivered by Wedell, J.: Plaintiff instituted a forcible detainer action in the Clay county court to obtain possession of the premises involved. Plaintiff prevailed and defendant appealed to the district court. The latter court rendered judgment restoring possession of the premises to plaintiff and taxed the costs of the action to defendant, From that judgment the defendant appeals. The bill of particulars in the county court, insofar as now material, in substance, alleged: Plaintiff was the owner of the premises which by oral agreement defendant entered and used as a repair shop from month to month at an original monthly rental of $60; the rental was later increased to $100 per month; on August 29, 1947, plaintiff notified defendant in writing to vacate as of September 30, 1947; on October 1, 1947, plaintiff notified defendant in writing to vacate the premises forthwith and that an action was about to be brought for the possession thereof (copy of the two notices were attached); defendant held the premises beyond his term and plaintiff was entitled to possession thereof after September 30, 1947; defendant owed plaintiff rent from October 1, 1947, in the amount of $100 per month prorated to the number of days defendant held the premises over the term. Defendant’s answer filed in the county court, insofar as material, alleged: “1. He admits he is a resident of Clay Center, Clay County, Kansas, and . that he peaceably and lawfully entered into the possession of the premises described in plaintiff’s bill of particulars. “2. He denies each and every material allegation contained in said bill of particulars, except specifically admitted herein.” In the district court appellant filed an answer denying all allegations of the bill of particulars except those specifically admitted and further, in substance, alleged: He had entered into an oral agreement with the plaintiff whereby it was agreed he could retain the premises until June, 1948, by increasing the rent from $80 to $100 per month; he paid the increased rent regularly including the rental for October, 1947, which latter rental plaintiff refused; if exhibit “A” were legally served upon him plaintiff waived it and defendant was entitled to possession. In the reply appellee denied all allegations contained in the amended answer which were inconsistent with the allegations of his bill of particulars. The parties waived trial by jury. Exhibits “A” and “B” adduced in evidence by appellee were: “ ‘EXHIBIT A’. “(Notice of Termination of Rental Agreement) “Given as of August 29, 1947 “Mr. Wm. Eiznhamer “Clay Center, Kansas “I, Ernest G. Gunter, do hereby give you this written notice to vacate my garage building located % block east of the Post Office in the City of Clay Center, Kansas, as of September 30, 1947, this being your 30 day notice, as I have leased this building on a term lease, beginning October 1-1947. “Respectfully, “/s/ E. G. Gunter “Clay Center, Kansas.” “ ‘Exhibit B’ “Notice to Quit “To William Eiznhamer. “You are hereby notified and required to forthwith leave the following described premises, to-wit: “Lot fifteen (15) of Block thirty-one (31) of the Original Townsite of Clay Center, Clay County, Kansas, for the possession of which premises an action is about to be' brought by me against you. “Witness my hand at Clay Center, this 1st day of October, 1947. “/a/ E. G. Gunter.” As a part of appellee's cross-examination appellant introduced his exhibit "5” which was: “Notice to Quit “To Mr. William Eiznhamer “You are hereby notified to quit and surrender to the undersigned Ernest G. Gunter, owner of the following described premises, to-wit: “Lot fifteen (15) of Block Thirty-one (31) of the Original Townsite of Clay Center, Clay County, Kansas, now occupied by you, at the expiration of thirty-three (33) days from the date this notice is served upon you or before November 3, 1947. This notice is given you for the purpose of terminating your tenancy in the said premises as provided by law. “You are further notified that unless you vacate the said premises in thirty-three (33) days from the date this notice is served upon you, action will be brought to recover possession of said premises and damages caused thereby. “Dated, October 1, 1947. “/s/ E. G. Gunter.” It is conceded exhibit “A” was delivered to appellant by registered mail with return receipt requested and that appellant received it. It is also conceded that both exhibits “B” and “5” were properly served by the sheriff of Clay county on October 1, 1947, and that his return disclosed such service. Appellant below contended he entered into an oral contract with appellee on June 3, 4, or 5, 1947, by which appellee agreed to con tinüe the tenancy until June 1, 1948, if appellant increased the rental payments to $100 per month. Appellee below admitted he agreed to permit appellant to continue as tenant from month to month at $100 per month but denied he agreed to permit appellant to retain possession until June 1, 1948, or for any other specified period. The conflict of testimony on this point was resolved in favor of appellee by the trial court and we cannot disturb the conclusion reached. It follows we must, and do, consider the arrangement as a tenancy from month to month. G. S. 1935, 67-503 provides: “When, rent is reserved payable at intervals of three months or less, the tenant shall be deemed to hold from one period to another equal to the interval between the days of payment, unless there is an express contract to the contrary.” There was no contract to the contrary. Thirty days’ notice in writing was necessary to terminate the tenancy. (G. S. 1935, 67-504. The statute which provides for service of notice to terminate the tenancy designated on whom, or in the specified alternative, where the notice shall be served but it does not state by whom it shall be served. Nor does it specify the method to be employed in making the service. (G. S. 1935, 67-510.) Under quite similar statutes requiring service of notice for other purposes it has been held service by registered mail with acknowledgment of service by the signature of the addressee on the return receipt requested constitutes substantial compliance with the provisions of the code. (Taylor v. Woodbury, 86 Kan. 236, 120 Pac. 367, reaffirmed on rehearing in 88 Kan. 203, 127 Pac. 541; Thisler v. Little, 86 Kan. 787, 121 Pac. 1123; Von Der Heiden v. Williams' Estate, 162 Kan. 233, 175 P. 2d 117.) While appellant did not personally sign this return it is conceded he received the notice. We think the service was sufficient for the single purpose of terminating the- contractual tenancy as of September 30, 1947. Exhibit “B” served by the sheriff on October 1, 1947, notified appellant to leave the premises forthwith “for the possession of which premises an action is about to be brought by me against you.” Under the statute a three-day notice is required as a condition precedent to the bringing of such an action. (G. S. 1935, 61-1304.) The law would, of course, read the three-day provision into the notice. In other words, the tenant under such a notice would not be obliged to vacate prior to the expiration of the statutory three-day notice. The form of the notice would not invalidate it merely because it did not specify when the tenant was required to quit provided the time allowed before the action was commenced was sufficient. (Hale v. Brown, 119 Kan. 303, 305, 239 Pac. 963.) Exhibit “5,” the last notice, also served by the sheriff on October 1, 1947, gave appellant thirty-three days from October 1, or until November 3, 1947, to vacate the premises.- It is conceded appellant was not in arrears in the payment of rent. Appellee states the last-mentioned notice was served in order to make certain the description of the premises was sufficient. In any event the last notice appears to have been intended to cover the thirty days required to terminate the tenancy under the provisions of G. S. 1935, 67-504 and the three-day notice required as a condition precedent to the bringing of an action for possession pursuant to G. S. 1935, 61-1304. This case turns on the question whether appellee complied with the forcible detainer statute providing for notice of commencement of an action for possession of the premises. (G. S. 1935, 61-1304.) A forcible detainer action is summary in character. It is purely statutory and a party desiring to avail himself of the remedy must bring himself clearly within its provisions. Otherwise the court acquires no jurisdiction. (Bell v. Dennis, 158 Kan. 35, 37, 144 P. 2d 938, and cases therein cited.) The instant action was filed and summons was served on appellant October 4, 1947. Appellant argues appellee waived his rights under the notices contained in exhibits “A” and “B” by thereafter serving the last notice which purported to extend appellant’s right to possession until November 3, 1947. There is some merit in the contention that a tenant receiving the last notice would be led to believe he was entitled to remain until the date therein specified and that an action would not be brought to evict him if he vacated the premises in compliance with the notice. Appellee contends the last notice did not constitute a waiver of the former notices and that he may give as many notices as he desires. As we view the facts it is not imperative to a ‘decision that we conclude the last notice constituted a waiver. Assuming it did not constitute a waiver the question nevertheless remains whether the notice of the commencement of the action was given in time. Exhibit “A” was merely designed to terminate the tenancy as of September 30, 1947. It gave no notice of an action for possession. Exhibit “B” constituted the first notice of an action. It was served October 1 and the action was commenced October 4, 1947. Was the action prematurely brought? G. S. 1935, 61-1304 requires the notice to be served “at least three days before commencing the action.” (Our emphasis.) Our deposition statute contains identical language. (G. S. 1935, 60-2844.) It provides: : “Every deposition intended to be read in evidence on the trial must be filed at least one day before the day of trial.” (Our italics.) It was early held the language “at least one day before” meant “one clear day before” the day of trial and that “both the day on which the deposition is filed, and the day of the trial, are to be excluded” in calculating the time. (Garvin v. Jennerson, 20 Kan, 371.) The interpretation of that statute consistently has been held to constitute an exception to the general rule of computation (G. S. 1935, 60-3819) which requires the exclusion of the first and the inclusion of the last day. (Boring v. Boring, 155 Kan. 99, 102, 122 P. 2d 743, and cases therein cited.) The pertinent provision of our divorce statute (G. S. 1935, 60-1517) reads: “No hearing shall be had in a divorce suit until, at least, sixty days after the filing of the petition, unless the court shall enter upon the records an order declaring an emergency. . . .” (Our italics.) In the Boring case we again reviewed the question of computation of time and concluded the legislature intended sixty clear days should intervene between the date of filing the petition and the hearing of the suit for divorce and that the general statutory rule for computation prescribed in G. S. 1935, 60-3819 did not apply. Appellee reminds us the general statutory rule of computation prescribed in G. S. 1935, 60-3819 was amended in 1943 and an additional statute, G. S. 1947 Supp. 60-3819a, was also enacted. He relies on the last mentioned section which reads: “That where any law of this state or any rule or regulation lawfully promulgated thereunder prescribes the time within which an act is to be done, if not otherwise specifically provided, the time within which such act is to be done shall be computed by excluding the first day and including the last; if the last day be Sunday or a statutory holiday, it shall be excluded; Provided, That if the time within which an act is to be done is one week or less, Sundays and statutory holidays shall be excluded.” (Our italics.) It would appear that legislation was probably enacted in view of the decision in Smith v. Robertson, 155 Kan. 706, 128 P. 2d 260, which involved the computation of time within which a petition for review could be filed in the district court under a provision of our unemployment compensation law where the last day for such filing fell on a legal holiday. We held the statute (G. S. 1941 Supp. 44-710 [C] [7]) made no exception if the last day fell on a legal holiday and that such day was to be counted in computing the five-day period within which the petition for review was required to be filed. We fail to see how the 1943 statute affects the question now before us. No legal holiday is here involved. The notice statute before us in the instant case does not involve the computation of the period of time within which an act is to be done. This notice statute prescribes the time which must elapse “before commencing the action” for possession. Touching this distinction see Boring v. Boring, supra, and cases therein cited. The judgment must be reversed. It is so ordered. Thiele, J., dissents from paragraph 5 of the syllabus and the corresponding portion of the opinion. Parker, J., concurrs in the result but dissents from paragraph 5 of the syllabus and the corresponding portion of the opinion.	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The opinion of the court was delivered by Harvey, C. J.: This was an action for the alleged wrongful conversion of mortgaged cattle. The appeal is from an order overruling plaintiff’s demurrer to portions of defendant’s answer. In plaintiff’s petition it was alleged (1) that plaintiff is a banking corporation organized and existing under the laws of Texas, with its place of business and post-office address at Dalhart, Tex.; (2) that defendant is a corporation organized under the laws of Missouri and authorized to do business in Kansas and has its principal place of business and registered office at Wichita; (3) that on July 26, 1945, plaintiff extended a loan to one J. E. Jones in the amount of $9,888.88, evidenced by a note of that date due December 1, 1945; that to secure the note J. E. Jones, a single man and a nonresident of Kansas, executed his chattel mortgage on 215 head of cattle, “now located and situated in the county of Meade, state of Kansas,” being 80 head of steers, yearlings and two-year olds; 45 cows, four to eight years old, and 60 calves by their sides, being the same cattle purchased from Ray Barr; that the steers were branded “C” on the right hip, the cows and calves were branded “V” on the left shoulder or “C” on the left hip, and the mortgage stipulated that it was given to secure the payment of the note, which represented the purchase price of the cattle. The mortgage contained the condition, among others, “That so long as the possession of said property is permitted to remain with mortgagor the same shall not be sold, mortgaged or removed from the place above named without the written consent of the bank.” It was further alleged that about October 8, 1945, defendant purchased from J. E. Jones approximately 208 head of the cattle covered by the chattel mortgage, and that at a later date, unknown to plaintiff, defendant sold the cattle to persons, firms or corporations, the names of which were unknown to plaintiff, and paid J. E. Jones, the sum of $10,727 for the cattle it purchased, which was their fair and reasonable value; that the cattle were clearly branded and easily identified as cattle covered by the mortgage; that the. cattle were sold by Jones to defendant and were resold by defendant without the knowledge or consent of plaintiff; that due and proper de mand has been made upon defendant for the payment to plaintiff by defendant of the loss sustained by plaintiff by reason of the unlawful sale of the cattle covered by plaintiffs mortgage, and that defendant has failed and neglected to pay the same, by reason of which fact defendant is indebted to plaintiff in the amount of the note with interest. The chattel mortgage was duly filed for record in the office of the register of deeds of Meade county, Kansas, on August 4,1945, at 9:20 o’clock a. m. Defendant filed an answer in which it admitted the allegations of paragraphs 1 and 2 of plaintiff’s petition and generally denied each and other allegations in plaintiff’s petition. Defendant further alleged (paragraph 4) that if the note and mortgage were executed and recorded with the register of deeds in Meade county, Kansas, as alleged in plaintiff’s petition, such instruments were void insofar as the rights of an innocent third person, not a party thereto, are concerned, and as to such innocent third party the alleged registration would not impart constructive notice of their existence for one or several of the following reasons (set out in subparagraphs a to d.). We copy the portion of the answer to which the demurrer was directed: “(c) That at the time said mortgages were purported to have been executed and acknowledged, the cattle and live stock purported to be described therein were not within the State of Kansas and were not within Meade County, Kansas, or at the place at which they were purported to be described therein. “(d) That in said purported mortgages the plaintiff attempts to describe and identify the live stock by brands and that the brands used to describe said live stock were not owned by or recorded in the name of the plaintiff or the said J. E. Jones with the proper officials of the State of Kansas, and that neither the plaintiff nor the said J. E. Jones owned said brands or had the lawful right in any way to use said brands upon live stock or to use said brands in the description of live stock, and that neither the plaintiff nor the said J. E. Jones was the recorded owner of said brands or otherwise had lawful right to use said brands in the State of Kansas. (Amended by adding): “At the time said mortgage was executed the brands referred to therein had not been placed on said cattle but such brands as were later placed on said cattle were placed there at the direction of the plaintiff in Meade County, Kansas.” The answer continues: “Further answering plaintiff’s petition, this defendant alleges and states that the Union Stock Yards located at Wichita, Kansas, is a stockyards as defined by Title III of the Packers and Stockyards Act of 1921 as amended, and which is Section 202, Title 7 U. S. C. A. and Section 42 of Statutes 163. “That the defendant, Farmers Union Livestock Cooperative Company is a market agency, buying and selling live stock on commission at the said Union Stock Yards, Wichita, Kansas, and registered with and licensed by the Secretary of Agriculture of the United States of America, to engage in such business as a market agency at said Union Stock Yards, Wichita, Kansas, in buying and selling live stock on commission pursuant to the terms and conditions of said Packers and Stockyards Act of 1921 as amended and the lawful rules and regulations of the Secretary of Agriculture. “That this defendant in the conduct of its said business as a market agency at the Union Stock Yards, Wichita, Kansas, as aforesaid, is required to receive and sell, without discrimination, all live stock consigned and shipped to it for sale at the said Union Stock Yards, Wichita, Kansas, and which live stock has been raised, conditioned, produced and shipped from a large number of different states of the Union; that this defendant is required to serve all applying for its services, without discrimination, and at rates and charges determined, fixed and approved by the Secretary of Agriculture of the United States of America, pursuant to the said Packers and Stockyards Act; that this defendant can no longer select those whom it will serve and those whom it will not serve, but is required to serve all those applying for its services. “That if at any time this defendant as a market agency received and sold any live stock shipped and consigned to it for sale by J. E. Jones, and if the plaintiff had any interest in any such live stock, which this defendant denies, that this defendant received and sold said live stock acting as a market agency, without notice or knowledge of any kind that the plaintiff claimed any right of interest in said live stock, or any knowledge that anyone had an interest in said live stock other than the shipper and consignor, J. E. Jones; that the defendant, Farmers Union Livestock Cooperative Company, performed its duties as required by the Packers and Stockyards Act, the lawful rules of the Secretary of Agriculture, and immediately accounted to the shipper and consignor, the said J. E. Jones, for the full amount of the net proceeds of said live stock, and that this defendant never knew or had any knowledge whatsoever that the plaintiff claimed any interest in any of such live stock until long after it had received and sold said live stock and remitted and accounted to the shipper, J. E. Jones, for the proceeds, and until long after the.said J. E. Jones received said proceeds from any such sale or sales which might have been made.” The prayer was that plaintiff’s petition be dismissed at its costs. The demurrer was considered by the court.and overruled. We think the demurrer should have been sustained to paragraph 4 (c). The fact that the cattle were not in Meade county, Kansas, at the time the mortgage was given is not material. The amendment added to paragraph 4 (d) discloses they were brought to Kansas, where the mortgage is alleged to have been recorded. On this point appellee relies strongly upon the portion of our statute (G. S. 1935, 58-301) which provides for the recording of chattel mortgages in this state in the county of the mortgagor’s residence and also in the county where the mortgaged property is located, “but if the mortgagor does not reside in this state then the mortgage shall be recorded in the county in which the mortgaged property is situated at the time the mortgage is executed.” The legislature was dealing with the general subject of recording mortgages in Kansas; it was not attempting to deal with the subject of recording a chattel mortgage where the mortgagor and the property were both outside the state. When a mortgage is given to some one who is out of the state by a mortgagor residing out of the state, upon property situated without the state, it is a matter which our legislature could not act upon, and there is no reason to suggest that it was attempting to do so. If the mortgagor is a nonresident of the state, and the property mortgaged is situated in Kansas, the mortgage should be recorded in Kansas. In Hess-Harrington, Inc., v. State Exchange Bank, 155 Kan. 118, 123, 122 P. 2d 739, a resident of Jackson county, Missouri, executed a mortgage on a car which he had in that county to a mortgagee situated there. Later the mortgagor brought the car to Woodson county, Kansas, where acts took place which complicated the situation and raised the question of whether its mortgage was still a lien upon the property. The court said: “It (the mortgagee) could have enforced its lien promptly when the property was removed from Missouri, it could have enforced it when default was made in the note, or it could have filed its mortgage in Woodson county." (Emphasis ours.) When the mortgagor and mortgagee are residents of another state and the property is situated there, and the mortgage duly recorded in that state, and the property is later brought into Kansas, without consent of the mortgagee, our courts recognize the lien of the mortgage upon the property, if the question is raised in this state, even though the mortgage is not recorded here. This is done under a rule of comity between states and not by reason of any statute. (Handley v. Harris, 48 Kan. 606, 29 Pac. 1145.) But even in such a case it is much safer for the mortgagee to file his mortgage in this state in the county to which the property has been removed (Hess-Harrington, Inc., v. State Exchange Bank, supra), and certainly it is more notice to people in Kansas dealing with the property. Counsel stress the wording of the statute (G. S. 1935, 58-301) that the mortgage “shall be forthwith deposited” in the office of the register of deeds, and also the wording in the latter part of the section, “in the county in which the mortgaged property is situated at the time the mortgage is executed.” These phrases have received a practical construction throughout the history of the state; that is to say, if the mortgage is not filed “forthwith” it does become a valid notice to subsequent purchasers, etc., if and when it is recorded. It is not such notice prior thereto, and where the location of the property is changed after the mortgage is given, and the mortgage recorded in the place to which the property has been moved and kept, it is valid from the time the mortgage is recorded in the county to which the property was moved. In this case it is sufficient that the cattle were in Meade county and branded as described in the mortgage, and that the mortgage was filed for record in that county, as alleged. Neither is it important that the cattle were not branded at the time the mortgage was executed if the brands described in the mortgage were later placed thereon. The result is that so far as anything alleged in paragraph 4 (c) of the answer, and including the amendment made to paragraph 4 (d), the mortgage was a valid lien upon the cattle and notice to subsequent purchasers, etc., at the time the cattle were sent to defendant and purchased by it. The following cases, which list is not designed to be complete, support these conclusions: Golden v. Cockril, 1 Kan. 259 [247]; Denny v. Faulkner, 22 Kan. 89, 98, 99; Cameron, Hull & Co. v. Marvin, 26 Kan. 612, 626, 628; McVay v. English, 30 Kan. 368, 1 Pac. 795; Swiggett v. Dodson, 38 Kan. 702, 17 Pac. 594; Boot & Shoe Co. v. Ware, 47 Kan. 483, 492, 28 Pac. 159; Dry Goods Co. v. McKee, 51 Kan. 704, 33 Pac. 594; Brittain v. Blanchard, 60 Kan. 263, 56 Pac. 474; Geiser v. Murray, 84 Kan. 450, 453, 455, 114 Pac. 1046; Overland Co. v. Evans, 104 Kan. 632, 634, 635, 180 Pac. 235; Peoples Nat’l Bank v. Edmunds, 119 Kan. 212, 216, 237 Pac. 911; Farmers State Bank v. Peters, 137 Kan. 786, 22 P. 2d 457; Schmitz v. Stockman, 151 Kan. 891 (syl. 5), 101 P. 2d 962. We think the demurrer to paragraph 4 (d) of the answer should have been sustained. That pertains to our statute on marks and brands then in force. (G. S. 1945 Supp., ch. 47, art. 4.) This authorized the governor to appoint a state brand commissioner whose duty, among others, was to record all brands used for the branding or marking of livestock in Kansas. Under it any person may adopt a brand for the purpose of branding livestock and have the exclusive right to use it after recording it with the state brand commissioner, and the method of doing that is provided. Any brand recorded in compliance with the act is the property of the person causing it to be recorded and is subject to sale, etc., and no evi dence as to ownership of brands shall be recorded with the commissioner except in compliance with the act. By section 420 it is made unlawful for any person to use any brand for branding livestock unless the same shall have- been duly recorded in the office of the brand commissioner. To do so is made a misdemeanor, punishable by a fine. This is not a prosecution under that section. We find nothing in the statute tending to show that one who brands livestock without having his brand recorded with the state brand commissioner loses title to the livestock, or that the failure of recording such a brand would invalidate a mortgage upon the livestock. The amendment added to this paragraph, which alleges the cattle were branded after the mortgage was given and while the cattle were in Meade county, Kansas, states no defense. Shortly stated, the remainder of defendant’s answer is to the effect that the Union Stockyards at Wichita is a stockyards defined by Title III of the Packers and Stockyards Act of 1921; that defendant “is a market agency, buying and selling livestock” on commission at such stockyards and registered with and licensed by the United States secretary of agriculture to engage in such business; that in the conduct of its business it is required to receive and sell without discrimination all livestock consigned and shipped to it for sale, and to serve all applying for its services without discrimination at rates and charges approved by the secretary of agriculture pursuant to the packers and stockyards act; that it cannot select those whom it will serve, but is required to serve all applying for its services; that at the time defendant received and sold any'livestock shipped to it for sale by J. E. Jones, defendant received and sold the same acting as a market agency, and accounted to Jones the net proceeds without any notice or knowledge that plaintiff had any right or interest in the livestock, the ultimate contention on this point being that even though plaintiff’s mortgage was duly recorded and valid in every respect; as a purchaser of such livestock, it was not bound by the constructive notice of the record of the mortgage as an individual purchaser would be, and since it had no actual knowledge of the mortgage its position as a market agency under the packers and stockyards act relieved it of any necessity of accounting to anyone except J. E. Jones, the shipper and consignor of the livestock to it. The contention cannot be sustained. It may be conceded that defendant is a market agency, as alleged, but it does not follow that defendant has to receive and sell all livestock shipped to it and pay the shipper from the proceeds without making inquiry as-to his lawful ownership of the livestock. The transaction is a change of title, and there is no reason why defendant should not be bound by our statute the same as any other purchaser of livestock unless there is something in the packers and stockyards act which relieves defendant from being so bound. The packers and stockyards act was prompted by complaints of unfair business practices by the packers, by livestock commission men and others who handle the business of selling livestock at the largest stockyards in this country. The act was passed after extended hearings before congressional committees upon bills in earlier sessions of congress as well as upon the bill which became the law on August 15, 1921, which considered the complaints of stockmen and others respecting the complaint of unjust practices, together with previous actions in court respecting some of such practices, with the result that the bill when introduced gave the “secretary of agriculture complete inquisitorial, visitorial, supervisory, and regulatory power over the packers, stockyards and all activities connected therewith; . . . The secretary of agriculture is given jurisdiction over the packers, stockyards, commission men, traders, buyers, and sellers in the stockyards. ... he is given the further power to prescribe the manner and form in which the packers, stockyards, and all other concerns operating in said yards, shall keep their books and accounts. He is given the power to prevent packers, stockyards, companies, and all persons dealing in the stockyards from engaging in unfair, unjustly discriminatory or deceptive practices or devices, ... to regulate and prescribe the practices on the stockyards, to prevent abuses . . .” (See Report No. 77, 67th congress, first session, of the committee on agriculture, which submitted the bill.) In Stafford v. Wallace, 258 U. S. 495, 66 L. Ed. 735, 42 S. Ct. 397, is presented a similar statement of the purposes of 'the act. It is there pointed out (p. 500) that the interest of “bank and cattle loan companies” were taken into account in the preparation of the act. The opinion also makes it clear that the purchase or sale of livestock by commission companies at the stockyards was a transfer of title to the livestock. It would be strange indeed if after all the hearings referred to in the report and the anxious efforts of congress through its committees to prepare an act to avoid abuses and practices detrimental to the owners of livestock so purchased and sold by the market agencies at the stockyards, that congress would in effect nullify the statutes of Kansas and other states with respect to the recording of chattel mortgages and the constructive notice that such valid mortgages so recorded should be rendered nugatory if the purchase is made by a market agency at a stockyards. Assuming the power of congress to do such a thing, certainly the act should have made it clear that such was one of its purposes. It is not claimed that the wording of the act makes such a result clear. The act gives the secretary of agriculture, after investigation, the power to make appropriate rules for the conduct of the business of market agencies and others transacting business at the stockyards. Among the rules promulgated and in force.at the time of the transactions here involved (see Code of Federal Regulation of the United States of America, Cumulative Supplement, Titles 4-9, pp. 2910-2925) is rule § 201.14 pertaining to the licensing of market agencies doing business at the stockyards. This required an applicant for such a license to make a showing of his financial ability to fulfill the obligations he would incur as a licensee, or to give a satisfactory surety bond, the terms of which are provided by rule § 201.29. Some of the bonds given in pursuance of this rule have been involved in litigation. (See Oss v. Hartford Accident & Indemnity Co., 130 Neb. 311, 264 N. W. 897; Hartford Accident & Indemnity Co. v. Morgan [Ohio App.], 32 N. E. 2d 425.) The bonds contain the obligation, among others, for “the faithful and prompt accounting for and payment of the proceeds of sale of live stock received for sale by such market agency for or on account of the owner or consignor, and all agreements for the purchase and/or sale of live stock, together with all charges properly assessable against such live stock or arising in connection with or on account of the handling, purchase and/or sale thereof.” With respect to the proceeds of the sale rule § 201.39, so far as here pertinent, reads: “No market agency or licensee shall pay the net proceeds . . . arising from the sale of livestock, . . . consigned to it for sale, to any person other than the owner of such livestock, . . . except upon an order from the Secretary of Agriculture or a court of competent jurisdiction, unless such person holds (a) a valid, unsatisfied mortgage or lien upon the particular livestock ...” This seems to make it clear that valid chattel mortgages on the livestock sold by a market agency are not to be ignored. We see nothing in the statute which sustains defendant's allega tion to the effect that under the packers and stockyards act it is required to sell promptly all livestock shipped to it for sale and pay the shipper the full net price thereof after the judgments, commissions and other proper chargeable items, without making any inquiry into the ownership of the livestock. Indeed, we regard the contention as contrary to the statute and the rules of the secretary of agriculture promulgated thereunder. Unless the packers and stockyards act and the rules of the secretary of agriculture promulgated thereunder abrogate our statute (G. S. 1935, 58-301), which makes the proper recording of a valid chattel mortgage notice of the mortgage lien to subsequent purchasers, we see no legal reason to say it is not applicable to such a market agency. The defendant’s argument on this point is not predicated upon the packers and stockyards act, nor upon any rule promulgated thereunder by the secretary of agriculture. It is predicated upon the general theory that by the act stockyards are made “public utilities,” and that the general law of public utilities, as applied to railroads and other public utilities, would relieve them of any duty to take any notice of the recorded chattel mortgage. The argument is far-fetched and lacks substance. The analogy of the relation of a common carrier of merchandise shipped on bills of lading to that of the defendant is not the same. The common carrier is a bailee of the merchandise; the defendant is a purchaser of it. When defendant purchased the livestock from Jones it became the owner of the cattle; the title passed. We find no federal case passing specifically upon the question urged by defendant that the packers and stockyards act relieves it as a market agency from taking cognizance of valid mortgage liens upon the livestock purchased. The question has been before some of the state courts. In Mason City P. C. Assn. v. Sig Ellingson & Co., 205 Minn. 537, 286 N. W. 713 (petition for certiorari, 308 U. S. 599, 84 L. Ed. 501, 60 S. Ct. 130, and motion for rehearing of the petition denied, 308 U. S. 637, 84 L. Ed. 529, 60 S. Ct. 178), the court had the specific question before it. That was a case involving a chattel mortgage on cattle purchased by the market agency. The pertinent syllabus reads: “The Packers and Stockyards Act (42 St. 159, 7 USCA, §§ 181-229) held not intended to supersede or disturb state law respecting chattel mortgage security on livestock delivered at public stockyards.” In that case there was a thorough discussion of all the contentions made by the market agency which are renewed by defendant here. This case was followed in First Natl. Bank v. Siman, 67 S. D. 118, 289 N. W. 416, where there was a chattel mortgage on sheep shipped to and sold to the market agency. It was followed also in Moderie v. Schmidt, 6 Wn. 2d 592, 108 P. 2d 331, where the market agency was held liable to the owner for having paid a drover from whom it received cattle the full purchase price thereof, though the market agency had no notice of his defective title. In Birmingham v. Rice Bros. (Iowa), 26 N. W. 2d 39, where possession of cattle had been obtained by fraud and taken to a market agency, which purchased the same, the one from whom they were obtained by fraud recovered from the market agency as for conversion of the livestock. It was held (¶¶ 6 to 13 of annotation 26 N. W. 2d, sufra): “The requirements of Packers’ and Stockyards Act as to furnishing services without discrimination substantially accord with common-law rule applicable to public utilities in general. “Neither by common law nor by any statute is any public utility required to serve all, and conduct prohibited is unjust discrimination, unfair rates or practices or unreasonable rules. “A market agency licensed under the Packers’ and Stockyards Act may require some reasonable showing that each proposed transaction is legitimate, and is not required to handle stolen livestock or livestock to which the principal’s title is defective, but may make reasonable requirements that one proposing to deal with it establish his identity and ownership of livestock. “Refusal of a licensed market agency operating under the Packers’ and Stockyards Act to aid a criminal in his crime of disposing of stolen or fraudulently acquired livestock is not wrongful ‘discrimination’ prohibited by the act Packers’ and Stockyards Act of 1921. “Request that factor licensed under the Packers’ and Stockyards Act to dispose of property fraudulently procured or stolen is not a ‘reasonable request’ for stockyard services which factor must comply with or be guilty of violating the act. “The Packers’ and Stockyards Act does not relieve market agencies licensed thereunder from tort liability for wrongful conversion and thus abrogate legal rights of the general public under state laws. “The construction placed upon Packers’ and Stockyards Act by federal authorities charged with its administration, in support of whom Solicitor General appeared in United States Supreme Court, is entitled to weight. “The Packers’ and Stockyards Act did not absolve a factor, which was a licensed market agency operating under the Act, from common-law liability for conversion of third party’s livestock through innocent participation in principal's fraud.” The Missouri Court of Appeals, in Blackwell v. Laird and Laird, 236 Mo. App. 1217, 163 S. W. 2d 91, held that a market agency under the packers and stockyards act, on selling stolen cattle received from a shipper and remitting the proceeds of the sale to him, was not liable to the owner of the cattle where the market agency did not know the cattle had been stolen. This holding was predicated upon the view that the market agency, being a public utility, was compelled under the packers and stockyards act to receive and purchase all livestock shipped to it. We do not accord with that view. Inasmuch as the market agency has to account to the owner of the livestock, including any mortgagee of a valid mortgage thereon, we think it cannot be said that the market agency must pay the proceeds of the purchase price to the person who ships or brings the cattle to the agency without regard to his title or ownership of such livestock. The rule previously quoted from the Iowa decision harmonizes with our view. It' is not contended by defendant that it acted as the agent of J. E. Jones in the sale of the livestock. We mention this simply to point out that the question of agency is not involved. Under the authorities cited in the Iowa case such a contention would not have been beneficial to defendant. We have no occasion here to write a thesis on the law of public utilities, but it may be said that the regulatory statutes pertaining to them are designed to have the business of the utility conducted fairly and without discrimination, but we think that none of them is designed to abrogate valid state laws for the protection of property rights. Even telegraph companies are not required to send obscene messages or those which obviously are sent for the purpose of aiding in the commission of crime (see 52 Am. Jur. 133, 136), and a railroad company which receives merchandise for shipment as a bailee may be liable if later it aids others in disposing of the property in a manner which amounts to conversion. (See Farmers Grain Co. v. Atchison, T. & S. F. Rly. Co., 120 Kan. 21, 121 Kan. 10, 245 Pac. 734), although liability was there denied because’the action was not brought within the time provided by the bill of lading. We need not pursue this point. Whatever the relations of persons acting under the packers and stockyards act are to common carriers, both being public utilities, the duties and liabilities of those acting under the packers and stockyards act are governed by that act. (See Swift & Co. v. United States, 316 U. S. 216, 649, 86 L. Ed. 1391, 62 S. Ct. 948.) We think the law pertaining to the notice given to subsequent purchasers of valid chattel mortgages, duly recorded, is well stated in Brown v. Campbell, 44 Kan. 237, 24 Pac. 492, where the syllabus which tells the story sufficiently, reads: “A chattel mortgage was properly deposited in the office of the register of deeds, and was valid, and the mortgage debt was not paid although it had been due for some time, and the mortgagee never had the actual possession of the property. The wife of the mortgagor transported the property to another county, consigned it to and placed it in the possession of á commission merchant or broker for sale, who sold and delivered the same to others and paid over the proceeds of the sale to .the consignor, the wife of the mortgagor, and all this was done without the knowledge or - consent of the mortgagee, and without any actual knowledge on the part of the commission merchant or broker concerning the mortgage or the rights of the mortgagee. Held, That as the mortgage was properly on file in the office of the register of deeds, and valid, the commission merchant or broker was bound to take notice of the same and of the rights of the mortgagee, and that by selling and delivering the property to others he made himself liable to the mortgagee as for a conversion of the property.” The case on this point has been followed and relied upon in Greer v. Newland, 70 Kan. 310, 77 Pac. 98, although in that action the plaintiffs specifically waived the tort and relied upon the implied contract, the court holding that the rule as announced in Brown v. Campbell, supra, was applicable whether the action was brought in tort or on contract. Upon rehearing (70 Kan. 315, 78 Pac. 835) the court concluded it was mistaken in holding the rule announced in Brown v. Campbell, supra, applicable where the action was brought on contract where the tort had been waived. The court, however, did not overrule Brown v. Campbell, supra, but distinguished it. The rule of Brown v. Campbell, supra, later has been followed and relied upon in Lumber and Grain Co. v. Eaves, 114 Kan. 576, 581, 220 Pac. 512, and in Farmers Grain Co. v. Atchison, T. & S. F. Rly. Co., supra. We have considered all the authorities cited by counsel, and while much more might be written we think what has been said sufficient. We conclude that the contention of defendant that because of its market agency under the packers and stockyards act it is relieved from giving attention to a valid recorded mortgage upon cattle shipped to and purchased by it is without merit, and that the demurrer filed by plaintiff to the parts of defendant’s answer herein discussed should have been sustained. The judgment of the trial court is reversed with directions to sustain the demurrer.	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The opinion of the court was delivered by Parker, J.: This case was commenced on the 29th day of January, 1946, by a husband against his wife for a divorce on the ground of gross neglect of duty only and the custody of their infant child. The wife answered denying the charge and in a cross petition charged the husband with abandonment, extreme cruelty and gross neglect of duty. In such cross petition the wife did not seek a divorce but merely prayed that the action be dismissed, that she be given custody of the child and that plaintiff be required to contribute a reasonable amount for its support. Plaintiff’s answer to the cross petition was a general denial of all allegations contradicting factual statements set forth in his petition and in his supplemental petition presently mentioned. Issues having been joined on claims of the parties with respect to divorce and custody, as just related, the case was tried by the court. After plaintiff had adduced his evidence he sought and ob tained leave to amend his petition and file a supplemental petition to conform to the evidence. This supplemental pleading, filed on March 14, 1947, charged the defendant had been guilty of extreme cruelty and gross neglect of duty toward plaintiff in that she had failed and neglected to live with him, for more than one year prior to its date of filing and still refused to do so and that by reason of such action on her part his health had been injured and impaired. Defendant then demurred to plaintiff’s evidence. When this demurrer was overruled she offered evidence in her own behalf and rested her cause. Ultimately the trial court found the plaintiff had sustained his charges of gross neglect of duty and extreme cruelty and held that by reason thereof he should be granted a divorce. Judgment was rendered accordingly. In addition such decree, without any allowance for child support, awarded joint custody of the child to each of the parties. Thereupon defendant perfected this appeal. Stripped of matters incidentally material but not decisive of its decision we are convinced from oral argument of the cause and an examination of the entire record that the vital and all important question involved in this case is whether appellee’s evidence established grounds for divorce or upholds the judgment. Hence our brief and summarized statement respecting pleadings and proceedings had in the court below, devoid of all reference to all matters we regard as nonessential to its determination. Decision of the question to which we have just referred requires, of course, a careful survey of all evidence adduced by appellee and its analysis under the well-established rule that it is to be viewed in the light most favorable to his cause. Before relation of the facts actually responsible for this lawsuit we believe a preliminary statement with respect to the situation of the parties prior to their occurrence will be of value. When the original petition was filed on January 9, 1946, appellee was 30 years of age and appellant 27. Prior to 1945 appellee was a soldier in the Army Air Forces of the United States and appellant was an employee of the Santa Fe railroad at Newton. They became very much interested in each other and were married at the Roswell, N. Mex., Army Air Field, where appellee was located, early in 1945. Since both realized that the army post was not an ideal place for a soldier’s wife it was agreed that appellant should, and she did, return to her work at Newton shortly after the marriage. Some time thereafter it was ascertained that she was pregnant. When so advised appellee set about to obtain a discharge from the army. He was successful and received an honorable discharge on the 9th day of November, 1945. He came at once to his wife. On November 14, 1945, appellant gave birth to a baby boy at a hospital in Wichita. There it was determined she and the baby should return to Newton and live with her parents temporarily. Appellee was to secure a place to live and establish a home for his wife and baby as soon as possible and they were to come to the home when she was able. For a time appellee frequently visited appellant at her parents’ home. Eventually he advised her he was ready to establish their home and they discussed when she would come to live with him. It will likewise be of value, and obviate further reference thereto throughout the course of this opinion, to state that in this action, the moral conduct, reputation and character of the parties is conceded to be above reproach. Since we are at the moment giving consideration to the sufficiency of appellee’s evidence it can and should also be said there is nothing in the record to indicate that the conduct, on which he bases his right to divorce at the time he filed his petition, was intentionally calculated by his wife to cause him mental anguish or physical pain or result, as a matter of law, in extreme cruelty as such term is defined in our decisions. In fact, during the course of his testimony as a witness in his own behalf appellee stated, not once but several times, that the only complaint he ever had against his wife prior to bringing his suit for divorce was that she would not leave her parents’ home at Newton and come with him. Having thus ascertained the gist of appellee’s complaint from his own testimony we now proceed to relate the substance of the material facts disclosed by the record with respect thereto. Discussion between the parties as to where they should live did not result in agreement. Ultimately appellant told appellee she could not come and live with hipi and that she wanted to live six months apart. Following this statement they went together to the home of a minister in Newton and discussed the situation with him. Appellee admits that during that conference they decided to live six months apart so that appellant could determine how she might then feel toward appellee and, although he did so reluctantly, he agreed they would live separate for such period of time. The exact date or dates of the statement and conference above mentioned are not found in appellee’s evidence and we are required to speculate as to when they occurred. However, since the baby was born on November 14, 1945, and this suit, was filed on January 29, 1946, it can be definitely ascertained such statement was made and such conference occurred within two months and fifteen days from the date of the birth of the child. Thus it affirmatively appears that when appellee commenced the case at bar he relied on failure of his wife to come and live with him for a period of time not exceeding two months and fifteen days, coupled with her announced refusal to do so for six months, as constituting gross neglect of duty, and that he-brought such action in violation of his conceded agreement she was to have and he was to give her six months time in which to decide whether she would do so thereafter. We make no attempt to detail appellee’s evidence relating to the conduct of the parties after institution of the divorce action. It suffices to say it reveals he professed great affection for his wife and on numerous occasions endeavored to induce her to live with him but she refused to do so. There is also sufficient evidence to support his claim that appellant’s conduct in that respect, both before and after the action was commenced, caused him to become nervous, suffer indigestion and interfered with his work. With evidence as heretofore related can it be held that appellee established either gross neglect of duty or extreme cruelty as those terms are defined in our decisions? At the outset it can be said that, except as it might be considered as a charge of extreme cruelty existing on the date of the filing of the action, we do not regard the allegations of appellee’s supplemental petition as having the effect of enlarging the issues theretofore presented to the trial court for decision. This court is not committed to and refuses to approve any doctrine which will permit a spouse, bringing a divorce action on grounds of gross neglect of duty or .extreme cruelty based entirely upon charges of failure of the other to live with him, to supplement his grounds for divorce by charges or proof that the spouse sued has failed and refused to cohabit with him since the institution of and while the action remained pending and undetermined. Directly applied to the instant case what has just been stated simply means that failure and refusal of the appellant to live with appellee during the pendency of his suit against her is not an element to be considered in determining whether his evidence established grounds for divorce. The result is appellee was required to affirmatively establish that gross neglect of duty or extreme cruelty as charged in his petition and in his supplemental petition existed on the date of the institution of his suit. Otherwise his evidence failed, to prove a cause of action against the appellant. It must be conceded that the terms “gross neglect of duty” and “extreme cruelty” as found in our divorce statute (G. S. 1935, 60-1501), are both somewhat indefinite and that whether either exists as a ground for divorce must depend upon the facts of each particular case, subject, of course, to general definitions of such terms as laid down by our decisions. One of the better and more recent definitions of extreme cruelty is to be found in Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127, where it was held: “Extreme cruelty as contemplated by our divorce statute is not limited to 'acts of physical violence. Any unjustifiable and long practiced course of conduct by one spouse towards the other which utterly destroys the legitimate ends and objects of matrimony constitutes extreme cruelty though no physical or personal violence may be inflicted, or threatened.” (Syl. IT 1). See, also, Stegmeir v. Stegmeir, 158 Kan. 511, 148 P. 2d 755; Carpenter v. Carpenter, 30 Kan. 712, 2 Pac. 122. High lighting the evidence this is a case where the husband’s sole complaint is that the wife would not come to live with him; that her refusal to do so came within two months and fifteen days after she had gone through the'harrowing experience of' giving .birth to her first child; that even then such refusal was qualified to the extent she wanted six months in which to make up her mind as to whether she would live with him; that the husband agreed she could have that period of time to make up her mind but notwithstanding sued her for divorce two months and fifteen days after the date of the birth of the baby. In such a situation, and under all the circumstances disclosed by the record, we have little difficulty in concluding appellee’s evidence failed to show extreme cruelty within the meaning of that term as used in the statute and defined in the foregoing authorities. This even though there was evidence appellee’s marital difficulties caused him to become nervous, suffer indigestion and interfered with his work. Conceding, as indicated in Carpenter v. Carpenter, supra; Rowe v. Rowe, 84 Kan. 696, 115 Pac. 553, conduct of one spouse seriously impairing the health or en dangering the life of the other may constitute extreme cruelty under certain conditions, we do not believe appellee’s evidence on the point in question established a condition contemplated by or brought him within the rule announced in such decisions. We next consider whether the evidence established gross neglect of duty. As we do so it must be remembered that one of the grounds for divorce under our statute is (G. S. 1935, 60-1501, second) abandonment for pne year, and kept in mind that if'mere failure on the part of one spouse to live with the other for a period of less than one year constitutes gross neglect of duty, the abandonment ground for divorce must be regarded as almost meaningless, or at least of little importance. Long ago in Smith v. Smith, 22 Kan. 699, this court said: “Upon, these facts, did the court err in finding there had been no gross neglect of duty within the scope of the divorce act? We think not. The expression, ‘gross neglect of duty,’ is indefinite, and it is difficult to lay down any general rule by which every case can be determined to be within or without its limits. Each case must be examined by itself. And yet an examination of the whole body of the divorce act will suggest certain things as to the legislative intent in this expression. And first, it is not mere neglect of marital duty. The adjective ‘gross,’ whatever may be said of it as a mere term of vituperation in other relations, here has legal force as descriptive of the conduct of the party neglecting duty. If it were not so, and any mere neglect of duty were ground for divorce, the aid of the courts might as well be abandoned, and voluntary separation permitted. There must not only be a default, but the default must be attended with circumstances of indignity or aggravation. . . . An abandonment for one month or ten, although it involves a total neglect of all marital duty, is not gross neglect of duty within the statute. Something more than mere neglect, although it is a neglect of all duty, is requisite. If neglect alone is shown, it must be a total neglect, and continue for a year.” (Emphasis supplied.) (p. 700.) The rule in Smith v. Smith, supra, has been repeatedly quoted, followed and approved, in our decisions (Wespe v. Wespe, 114 Kan. 21, 216 Pac. 814; Zeiler v. Zeiler, 158 Kan. 200, 202, 146 P. 2d 649) and is the prevailing law of this state. The record in this case is wholly devoid of anything indicating appellant’s conduct was accompanied by indignity and aggravation, was intentionally calculated to wound appellee’s feelings or destroy his piece of mind, or was attended by any other circumstances which might be regarded as gross neglect of duty within the meaning of that term as used in the statute. Therefore appellee’s evidence wholly failed to establish gross neglect of duty. Based upon what has been heretofore stated and announced we hold the trial court erred in refusing to sustain the demurrer to appellee’s evidence and that its judgment cannot stand. It should be added that our conclusion has not been reached without careful consideration of the four cases cited by appellee and construed by him as requiring a decision that his evidence established a case of gross neglect of duty and extreme cruelty. We are unable to give such decisions the weight he places upon them. In Stegmeir v. Stegmeir, supra, the plaintiff’s evidence disclosed repeated acts of physical violence practiced upon him by his wife and he was granted a divorce upon grounds of extreme cruelty because of such acts. In Rolland v. Rolland, 148 Kan. 851, 85 P. 2d 21, a finding of extreme cruelty was based upon continuous fault-finding, cursing, threats and wrongful insinuation of questionable relations. Gross neglect of duty in Petty v. Petty, 147 Kan. 342, 76 P. 2d 850, was based upon a long continued course of conduct on the part of the wife wherein there was a constant feeling of estrangement, repeated and almost continuous bickering and disagreements between the parties over relatively trivial things when they were alone and a full realization on the part of both that their marriage had failed. In addition the wife’s conduct in that case was of such character that the court denominated it gross misconduct. A divorce was granted the husband in Carpenter v. Carpenter, supra, on the ground of extreme cruelty because his wife had written letters to other persons charging him with criminal intimacy. None of the elements pointed out as existing in the foregoing cases are involved in the case at bar. The judgment is reversed and the cause remanded with instructions to sustain the demurrer to plaintiff’s evidence and render judgment for the defendant.	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The opinion of the court was delivered by Hoch, J.: In an action to recover on a promissory note the defendants prevailed and the plaintiffs appeal. Appellants contend that the trial court erred in giving and in refusing instructions and in overruling their motion to set aside the jury’s answers to special questions. This is the third appeal in this action. In each of two previous appeals, the judgment was reversed and the case remanded for a new trial. (Kerby v. Bott, 160 Kan. 566, 164 P. 2d 84; Kerby v. Hiesterman, 162 Kan. 490, 178 P. 2d 194.) The defendants prevailed at the first trial and the plaintiffs at the second. On October 13, 1943, John Bott, since deceased, gave his promissory note to D. J. Briggs for $2,500, due ninety days thereafter with interest at eight percent. Two days later, on October 15, the plaintiffs purchased the note from Briggs at a discount of $300. Action to recover from Briggs and Bott was filed on” July 1, 1944. Briggs filed no answer, and at the first trial, on March 12, 1945, judgment was entered against him for the full amount of the note with interest and costs. Efforts to collect from him have been unsuccessful. At all three trials the jury found that the execution of the note had been secured by the fraud and misrepresentation -of Briggs, and the controlling question was whether the plaintiffs were holders in due course. At the instant trial, in addition to a general verdict for the defendants, the jury answered special questions as follows: “1. Do you find from a preponderance of the evidence that the signature of John Bott was procured upon the note in question in this case by the fraud and misrepresentation alleged and claimed by the defendant? A. Yes. “2. Do you find from a preponderance of the evidence that the plaintiffs acted in good faith in purchasing the note in question in this case from D. J. Briggs? A. No. “3. If you answer question No. 2, by stating ‘No,’ then state in answer to this question the facts which you find show that the plaintiffs did not act in good faith in purchasing such note. A. Lack of investigation; excessive profit on short term note; unsecured and no financial statement; telephone identification unsatisfactory on $2,500.00 note.” Motions of plaintiffs to set aside the answer, for judgment notwithstanding the general verdict and for a new trial, were overruled and this appeal followed. Appellants first contend that the trial court erroneously instructed the jury with reference to the good faith and lack of notice of infirmity of the instrument required to constitute a purchaser a holder in due course. A holder in due course is defined by statute, G. S. 1935, 52-502, as follows: “A holder in due course is a holder who has taken the instrument under the following conditions: (1) That it is complete and regular upon its face; (2) that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; (3) that he took it in good faith and for value; (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.” G. S. 1935, 52-506 defines notice of infirmity in a negotiable instrument as follows: “To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.” Instruction No. 11 given by the court was as follows: “The jury is further instructed that in order for it to find that the plaintiffs had notice of the infirmity in the note or the defect in the title of Briggs thereto, claimed by the defendants, if the jury in fact does find herein that there was such infirmity or defect in title, it must be shown by the evidence and circumstances in the case that the- plaintiffs, or one of them,'had actual knowledge of such infirmity or defect, or that they had knowledge of such facts that their action in purchasing the same amounted to bad faith. What is bad faith in a case of this kind is a question of fact to be determined by) the jury from all of the evidence admitted for consideration by it, and the circumstances shown to have existed in connection with the purchase thereof. You are further instructed in this connection that it is not enough that the knowledge of facts, or the circumstances, shown to' exist, were only sufficient to create a suspicion of the existence of some infirmity in or defect of title to the note being purchased.” (Italics supplied.) Appellants offered an instruction in lieu of No. 11, supra, which was identical with it, except that in place of the last sentence thereof, beginning “You are further instructed,” they asked substitution of the following: “You are further instructed that the rights of the plaintiffs are to be determined by the simple test of honesty and good faith and not by speculative issue as to their diligence or negligence. The plaintiffs’ rights cannot be defeated without proof of actual notice of the defect in title or bad faith on their part evidenced by facts and circumstances. Though plaintiffs may have been negligent in taking the note, had a suspicion of such defect of title, andi omitted precautions which a prudent man should have taken, nevertheless unless they acted in bad faith their title to the note in question would prevail." (Italics supplied.) Appellants also requested another instruction as follows: “You are further instructed that a jrarchaser of a note is ordinarily under no legal duty to inquire as to the circumstances under which it was executed, unless circumstances are so potent, cogent and obvious that to remain passive under the circumstances would amount to bad faith." (Italics supplied.) In the appeal from the judgment at the second trial in this case error was asserted in the giving of an instruction which read in part as follows: “What is bad faith in a case of this kind, is a question of fact to be determined by the jury, and in this connection you are instructed that neither a suspicion of defect of title, knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or put him on inquiry, nor even gross negligence on the part of the purchaser will affect his rights unless the circumstances are so potent and obvious that to remain passive would amount to bad faith." (p. 492.) (Italics supplied.) While the judgment at the second trial was reversed for a new trial upon other grounds, it was said in the opinion: “Perhaps the wording of the asserted erroneous instruction is confusing and places too much emphasis upon negative circumstances even though its language is lifted largely from the opinion of this court in the case of Bank v. Hildebrand, 103 Kan. 705, 177 Pac. 6. . . . The instruction as given was not entirely erroneous and consequently the fact that defendants criticized its construction, on a motion for new trial does not make it mandatory that a new trial be granted. The question involved was given extended consideration in our opinion by Mr. Justice Parker in Sams v. Commercial Standard Ins. Co., 157 Kan. 278, at 287, 139 P. 2d 859.” (p. 492.) It will be noted that some of the language in the instruction, supra, requested by appellants, is substantially the same as the language mildly criticized as placing “too much emphasis upon negative circumstances.” The trial court, at the ensuing new trial, with evident purpose of following the suggestion of this court in the matter even though what had been said was, strictly speaking, in the nature of dictum, omitted the language criticized. However, appellants now contend that the instruction, criticized, correctly stated the law and that failure so to instruct constituted prejudicial error. It is true, as pointed out by appellants, that various text writers, reflecting what has been said in many jurisdictions, have approved their requested instruction. They cite from 10 C. J. S. 818-820, § 324, a general statement in support of the propriety of including, in instructions on the question of notice, language like that which they requested. It may be noted, however, that even in that statement it is said: “Under the general rule the true test is the presence or absence of bad faith, and not diligence or negligence or the presence of suspicious circumstances. Negligence in failing to make inquiry in the face of suspicious circumstances, or even gross negligence, is not conclusive and does not establish bad faith as a matter of law, but it is evidence of bad faith and material as bearing on the question of good faithf’ (10 C. J. S. 818-820.) (Italics supplied.) In any event, we need not here determine whether it would have been proper or would have been prejudicial if the requested language had been included in the instruction. The question here is whether the instruction as given was prejudicially insufficient. We do not so consider it. It followed closely the statutory definitions, supra. The jury was instructed that in the absence of actual knowledge of infirmity in the instrument the purchasers must have had knowledge of such facts that their action in purchasing it amounted to bad faith; that bad faith was something to be determined from all the evidence and, further, that facts which were only sufficient to create a suspicion of some infirmity or defect of title would not be enough to constitute bad faith. We can see no prejudice to the purchasers in that instruction or in failure to say more. Appellants’ next contention is that the jury’s answer to question 3, supra, was insufficient to constitute lack of good faith. As to “lack of investigation” we are unable to say that no circumstances were shown which called for further investigation before purchasing the note. The evidence need not be recited in full. Here was a ninety-day note for $2,500, drawing eight percent interest, bought at a discount of $300; plaintiff who bought the note two days after it was executed testified that Briggs, the payee from whom he bought, was a stranger to him and he didn’t know much about his financial standing; Bott, the maker of the note, lived only thirty miles from plaintiff’s residence at Clay Center; at the time plaintiffs purchased the note they held out fifty dollars from the purchase price, upon direction'by Briggs, to send to the banker who had previously called from Clifton, in furthering sale of the note, -and who testified that he knew Bott and that he was well worth the note and that “I expect Bott could have borrowed $2,500 at any nearby bank. He should have been able to. It is possible that he could .have gotten the money for less than eight percent. Conditions were pretty good in October, 1943.” There was ample evidence to support plaintiffs’ story of the whole transaction, their standing and their good faith in the matter. However, it is not our function to weigh the evidence, and we are unable to say, upon this record, that there was not sufficient evidence to support the findings and verdict of the jury. The judgment is -affirmed. Thiele, J., not participating.	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The opinion of the court was delivered by Smith, J.: This was a prosecution for a violation of G. S. 1935, 21-527, commonly known as robbery in the first degree. The defendant appeals. The prosecuting witness was a young white woman, the defendant a colored man. The offense is alleged to have taken place at 6:45 p. m., on March 5, 1947.- The prosecuting witness testified that at twenty minutes of seven on the day in question she left her home for the bus station, where she was to meet her brother; that as she was walking down Fourth street she passed the entrance of a building and some one stepped up behind her, grabbed her and together they slid down the embankment, which was close by; that as they reached the bottom of the embankment, he pinned her shoulders to the ground and drew back to hit her and just as he looked down into her face he grabbed her purse and ran around the west side of the building; that thereupon she got up and ran to the bus station and told her brother. She testified that as she looked around and saw her assailant’s face she knew she had seen, him somewhere. She identified the defendant sitting in the courtroom as the man who had robbed her. She testified that in her purse was a billfold with a silver dollar and about thirty cents in it; that there was snow on the ground and city lights in the immediate neighborhood. She testified further that two days thereafter as she was working in a restaurant the defendant entered it to get coffee and after he had left she called the police station and told them her assailant had been in the restaurant. The police came to the hotel where the defendant was janitor and when they asked the clerk who it was he had sent for coffee the clerk pointed out the defendant. He was. arrested. Later that day the prosecuting witness identified him as the man who had robbed her. Soon after the robbery occurred the police came to the scene with the prosecuting witness and her brother, and they noted that a struggle had occurred there and followed the tracks of a man for some distance. At the trial the prosecuting witness testified about as detailed here with some inconsequential details. In defense, the defendant denied having robbed the prosecuting witness and offered evidence that he was busy in the hotel that evening until sometime after the robbery is alleged to have occurred. There was also evidence as to his good reputation. If the members of the jury had believed the evidence as to defendant’s alibi the verdict would, no doubt, have been “not guilty.” It was the province of the jury to weigh this evidence. The defendant filed a motion for a new trial on various grounds. The only ones that need to be noted by us are misconduct of the jury; that the verdict was the result of passion and prejudice and that the conduct of the county attorney in using inflammatory language toward the defendant in his closing argument by making a statement in his argument that in his opinion the defendant was guilty. This motion for a new trial was overruled and the defendant duly sentenced; hence this appeal. The errors specified are that the court erred in overruling defendant’s motion for a new trial and in rendering judgment against defendant. The first point argued by the defendant is that his motion for a new trial should have been granted on account of misconduct of the county attorney. This misconduct consisted in the county attorney using the following language: “If a big nigger like that would throw you down in the snow,” When counsel for the defendant objected to this language the county attorney said “I change the statement to Negro, it was a slip, I did not mean it.” The trial court thereupon on request of defendant’s counsel admonished the jury, as follows: “You may disregard that remark — that sentence he spoke.” The defendant relies on various cases where we have held that it was error for the court to permit vituperation and abuse of the defendant predicated upon alleged facts not in evidence. He points out that the jury was composed of seven white men and five white women. He argues the prosecuting witness was a white woman and the defendant was a colored man and that under the circumstances these words were highly inflammatory and do doubt influenced the jury to return a verdict of guilty. It is true we have said many times that an argument to the jury should be based upon the facts in the case and that vituperation and abuse and other language calculated to prejudice the jury was not proper. Not every instance in which something of that sort happens, however, warrants the setting aside of a verdict. The defendant cites and relies upon what we said in State v. Netherton, 128 Kan. 564, 279 Pac. 19, where we held that certain remarks of the county attorney were so prejudicial as to require a reversal. In that case there were a number of prejudicial inflammatory remarks made by counsel for the state. The court did not advise the jury not to consider the remarks and when the remarks were called to the court's attention the court still refused to advise the jury they should not consider them. In this case the reference to the race of the defendant was rather slight and almost immediately objection was made to it by counsel of defendant and the court advised the jury to disregard it. Furthermore, the question always is whether the remarks did actually prejudice the jury. It is the province of the trial court to rule upon such a question in the first place. It seems that the trial court in this instance advised the jury not to consider the remarks. Counsel for the defendant made no further motion to ask the court to admonish the jury further or to declare a mistrial. The trial judge in this case is one of wide experience in the trial of criminal cases. We do not feel the record is such that we should interpose our judgment as to the effects of the remark upon the jury against the judgment of the trial judge. Defendant next argues that his motion for a new trial should have been granted because of misconduct of the jury. To substantiate this ground, his counsel presented his affidavits on the motion for a new trial, a part of which was as follows: “Affiant further states, that he is informed and believes, that immediately on entering the jury room, immediately after his Honor had presented the case to the jury for their deliberation, one of the jurors, Merle Lamborn, stated in substance or effect as follows: “ ‘That nigger wasn’t after any money; he wanted to rape that woman (meaning Fern Linenberger, the prosecutrix) and as soon as she recognized him, he grabbed her purse and dashed away’ or words to that effect. “Affiant states that there was no testimony whatever introduced on the trial of said cause to the effect that the defendant attempted to rape said Fern Linenberger — while on the other hand — she testified that he did not attempt to rape her.” Defendant relies upon cases where we have held that a statement by a juror to his fellow jurors upon immaterial facts not in evidence was misconduct. The trouble about that ground is that counsel for the defendant did not state that the juror actually made that statement. All he said was he had information and belief that the juror made it. Testimony of the juror was not offered in the hearing of the motion for a new trial. Here again we apply the rule that the weight and significance of such matters are to be passed on by the trial court. There was no competent evidence offered here that any juror actually made any such remark. Defendant next argues that the trial court erred in not granting him a new trial because the county attorney in his closing argument expressed an opinion that defendant was guilty. We have examined the affidavit of counsel for defendant, which he used on the presentation of the motion for a new trial. The record does not disclose that counsel for defendant objected to these statements at the time they were made. He permitted these statements to be made without objection and then took advantage of them on a motion for a new trial. (See State v. Brecheisen, 117 Kan. 542, 232 Pac. 244; State v. Peterson, 102 Kan. 900, 171 Pac. 1153; and State v. Wilson, 108 Kan. 433, 195 Pac. 618.) The question of whether remarks of a prosecuting attorney were so prejudicial as to require a new trial is one to be-decided first by the trial court. The trial court weighs the evidence and having conducted the trial throughout is better able than is a reviewing court to decide'. We have concluded that it was not error to overrule the motion for a new trial. The judgment of the trial court is affirmed.	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The opinion of the court was delivered by Hoch, J.: The plaintiff prevailed in an action to have an instrument in form a warranty deed with reservation of a life estate in the grantor declared to be a mortgage. The appellants contend that causes of action were improperly joined in the petition, and that the finding that the instrument was intended to be a mortgage was erroneous because not supported by a clear preponderance of the evidence. In his petition, filed January 16,1947, the plaintiff alleged that in September, 1942, he was the owner and in possession of certain city property in Kansas City, Kansas, of a value of about $2,500; that taxes upon the property were delinquent and in order to secure money to pay them he borrowed from defendant Martin. Visser $213.87 which was paid to the county treasurer in full payment of taxes due for 1941 and prior years; that in order to secure payment of the loan he executed and delivered; to the defendants on September 24,1942, a warranty deed subject to a life estate in himself which deed was intended by both parties to be a mortgage only, as security for repayment of the loan; that continuously since that time he had occupied the premises covered by the instrument, had made permanent improvements thereon, including a new roof, all of which he had paid for; that he had made many payments to Visser on the loan and had repeatedly offered to pay him the balance of the loan, but that the defendant refused to account with him as to the amount still due and had refused to convey the property to him; that he was ready to pay whatever might be due on the loan and would pay the money into court for that purpose; that the sole interest of the defendant Martha Visser as one of the grantees in the deed was as wife of Visser. He asked determination of the amount due the defendant and that upon payment thereof defendants be required to convey the property to him. Defendants filed a motion to require the plaintiff to separately state and number causes of action set out in the petition. The motion was overruled and they then demurred to the petition on the grounds that it contained causes of action improperly joined, and a confusion of theories upon which relief was sought, and that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled and in an answer, unverified, defendants alleged that the plaintiff voluntarily gave the property to them, the warranty deed being evidence of the gift; that they had paid the taxes assessed against the property and that the plaintiff’s “original cause of action” was barred by the statute of limitations. The latter contention is not now urged. The reply was a general denial. The action went to trial on October 16, 1947, and at the conclusion of plaintiff’s evidence the defendant moved for judgment on the pleadings, the opening statement of counsel for the plaintiff, and upon the evidence. The motion being overruled, the defendants rested. Whereupon the court held that the instrument was an equitable mortgage to secure a debt of $213.80, upon which there was a balance due of $91.63, and the plaintiff was given thirty days to redeem, by payment of the full amount due, and upon such redemption the deed should be canceled and the defendants were directed to execute an absolute deed of conveyance to the plaintiff and if they failed to do so, the judgment should operate as such conveyance. Motion for new trial was made and overruled and this appeal followed. The motion to separately state and number, and the demurrer to the petition were properly overruled. We find no confusion of theories in the petition. Plaintiff clearly alleged that the instrument was intended by the parties only as security for the loan, and that he had repeatedly offered to pay the amount still due on the loan, and asked that upon payment of the amount found to be due, defendants be required to convey the property to him. There was, in substance, only one cause of action. Moreover, a motion to separately state and number rests in the sound discretion of the trial court, and appeal does not ordinarily lie unless it appears that substantial rights of a party have been prejudiced by the ruling. (G. S. 1935, 60-741 and 60-3317; Nelson v. Schippel, 143 Kan. 546, and cases cited pp. 547 and 548, 56 P. 2d 469; Mullarky v. Manker, 102 Kan. 92, 96, 170 Pac. 31.) It is well settled that where an equity court has obtained jurisdiction of a controversy it ordinarily and properly retains jurisdiction for the purpose of determining all issues with respect to the subject matter. This rule has been specifically applied to actions to determine whether instruments purporting tó be deeds are, in fact, mortgages. (Hess v. Hess, 164 Kan. 139, and cases cited p. 143, 187 P. 2d 383.) Determination of the amount of the unpaid balance due on the loan was incidental to the main issue. The principal contention of appellants is that the plaintiff’s evi dence did not constitute that degree of proof which is necessary in a proceeding of this nature. On this point, our attention is called to Winston v. Burnell, 44 Kan. 367, 24 Pac. 477. In that case the defendant contended that a certain instrument in the form of a warranty deed was intended as a mortgage to secure an indebtedness to the plaintiff. We there upheld an instruction that “the burden of proving by preponderance of the evidence that said deed was intended only to secure the payment of money rests upon the defendant; and unless he has proved this by a clear preponderance of the evidence, you will find for the plaintiff.” (p. 369.) That rule has been repeatedly approved in later cases. (Klusmire v. Dixon, 150 Kan. 871, and cases cited, p. 875, 96 P. 2d 634.) Appellants also cite Waddle v. Bird, 122 Kan. 716, 253 Pac. 576, and Brundige v. Blair, 43 Kan. 364, 23 Pac. 482, both of which related to reformation of contracts in which it was said, following many previous cases, that to warrant reformation of the instrument the proof must be clear and convincing. Strictly speaking, the instant action was not to reform a written instrument, but was to effectuate the intent of the parties as to the nature of the instrument when it was executed. However, the cases cited are consistent with the rule above stated. It may be added that this rule that parties seeking to have an instrument, in form a deed, declared to be a mortgage, must establish such an intention of the parties by a clear preponderance of the evidence, is a rule for the guidance of the trial court, and on appeal the appellate court will assume that the trial court knew and applied the rule. (Jones v. Jones, 161 Kan. 284, 167 P. 2d 634; Klusmire v. Dixon, supra, and cases cited, p. 875.) Indeed, the court’s statement, at the time judgment was entered and the evidence upon which it was based, indícate that the court did apply the rule. In determining as between the parties whether an instrument, in form a deed, is to be regarded as an absolute conveyance or as a mortgage, the ordinary test is whether there continued to be a debt which the instrument was intended to secure. (Hess v. Hess, supra, and cases cited, p. 141.) In the instant case the evidence consisted of the depositions of the plaintiff and of the attorney who drew the instrument. The defendants offered no evidence. It is unnecessary to recite plaintiff’s testimony in full. He testified that in September, 1942, he was over seventy years of age, in poor health; that taxes were not paid on the property and that he had been unable to borrow the money to pay them; that defendant offered to pay the taxes in full, to be repaid in a certain amount each month with five percent interest on unpaid balances; that the defendant agreed to accept payments of $10 a month and that he had paid him that much each month with the exception of one month when he paid $5. An exhibit was introduced consisting of receipts from defendant Visser showing a monthly payment on February 1,1943, of $5 and twenty-three other monthly payments of $10 each, making a total of $235. Also an exhibit showing the following statement in defendant’s handwriting: “Statement from 24 Sept. 1942 till 24 Sept. 1943 a loan from Martin Visser 953 Tenney Ave. Kansas City, Kansas to J. A. Sanders .at 737 Tenney Ave. K. C. K.” followed by statement of taxes and interest each year from 1936 to 1941, inclusive, and other items not necessary here to recite. The trial court found that subsequent to the loan of $213.80 the defendant Visser had paid additional taxes of $112.83, making a total of $323.63 upon which the plaintiff had paid $235, leaving a balance due of $91.63 with interest at five percent. The appellants have not here attacked the computation. The attorney who had prepared the instrument in September, 1942, testified, in substance, by deposition, that when the attorney for the plaintiff talked to him after the suit was filed, he was unable to place the incident in his mind, and was unable to recall the transaction until he was shown the instrument and examined its contents; that he then recalled that two men, one of whom was the plaintiff, came to his office and he was told that they wanted a deed prepared; that to the best of his recollection, Mr. Visser asked him if he would draw a deed for them; that the deed was prepared under his direction and, before it was signed, he told Sanders that it was the ordinary form of warranty deed conveying his interest in the property, and explained to him the meaning of the clause which reserved a life estate to him; that he recalled from' their conversation the men had had some transactions but could not recall the details, but they had to do with money matters between them at that time. After hearing this evidence the trial court stated, in part: “What were these payments for if he was taking a deed to the property? It was up to him to take care of that property and do the maintenance, and all that. He was going to get his compensation after this man passed away. But he keeps collecting money all the time, and that shows it is a debt. That is one of the very strong points in favor of the plaintiff. And this endorsement on one of those receipts — that shows he was putting this money on a loan— what loan — the loan covered by the deed. No other loan.” Plaintiff’s evidence was amply sufficient to support a finding by the court that while the instrument was, in form, a deed the parties intended it as a mortgage to secure a loan. The judgment is affirmed. Cowan, J., not participating.	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The opinion of the court was delivered by Parker, J.: In these three actions, consolidated in this court for appellate purposes, the plaintiff is attempting to recover a judgment against the defendant, H. J. Cloonan, on three promissbry notes. The plaintiff appeals from a judgment sustaining such defendant’s demurrers to its amended petitions. Case No. 37,083 presents one additional issue. Helen M. Cloonan, joined with her husband H. J. Cloonan as a party defendant in that action, appeals from a judgment overruling her demurrer to the amended petition. No further attention will be given this phase of the appeal until the issue common to all cases has been outlined and determined. Until it is discussed the words “defendant” or “appellee” have reference to H. J. Cloonan only and the word “appellant” signifies the plaintiff corporation. The theory on which plaintiff bases its right of recovery against the defendant cannot be clearly visualized except by a detailed recital of the allegations set forth in one of the involved pleadings. Therefore we feel impelled to quote at length from the amended petition in case No. 37,084 which, omitting formal matters and other allegations not deemed material, reads: “3. That defendant H. J. Cloonan is a resident of Labette County, Kansas, his post office address being 4250 Main Street, P'arsons, Kansas. That the residence or whereabouts of defendant H. M. Blankenship is at this time unknown to plaintiff. “4. That from on or about the month of December, 1938, defendant H. J. Cloonan was engaged in the automobile and garage business in the City of Parsons, Kansas. . . . “5. The Exchange State Bank of Parsons, Parsons, Kansas, was a corporation duly created, organized and existing under and by virtue of the laws of the- State of Kansas and at all times mentioned herein carried on a banking business at 1817 Main Street, Parsons, Kansas, until June 21, 1941, when it closed its doors. During the interim of time from December, 1938, to June 21, 1941, said defendant was a patron of said Bank. “6. That said Bank, from August 23, 1935, to June 21, 1941, the date upon which it closed its doors, was an insured bank of and in Federal Deposit Insurance Corporation of United States, as evidenced by Certificate No. 11,773. “7. That on or about January 3, 1941, one Harold Evert Reece was a director, officer, agent, and employee of and at said time was holding the office of Cashier of said Bank. He continued in such official capacity until April 5, 1941, when he became President of said Bank, which office he held until May 31, 1941, when he resigned. “8. That on or about January 3, 1941, one William Adelbert Smith was a director, officer, agent and employee of and at said time was holding the office of Assistant Cashier of said Bank. He continued in such official capacity until April 5, 1941, when he became Cashier of said Bank, which office he held until June 21, 1941, when¡ said Bank closed its doors. “9. That on March 27, 1941, H. J. Cloonan was indebted to said Bank in the sum of $11,850 for money which he had received out of the funds of said Bank. That said sum of money and the various portions thereof constituted excess loans and was in excess of any amount which said Bank could legally loan to said H. J. Cloonan at the time the same were made, and was obtained wrongfully and unlawfully in violation of law hereinafter cited; and was part and parcel of the conspiracy hereinafter alleged. “10. That on March 27, 1941, when said H. J. Cloonan was insolvent and heavily indebted to said Bank and when the said Harold Evert Reece and William Adelbert Smith was each a director, officer, agent and employee of said Bank and holding the office of President and Cashier, respectively, and while so acting had access and control of all the records, funds, moneys and credits of said Bank, the said Harold Evert Reece, William Adelbert Smith and H. J. Cloonan, with the intent to cheat, injure, defraud, and deceive said Bank, its depositors, the bank examiners of the State of Kansas, Federal Deposit Insurance Corporation'' and its examiners, schemed, planned, and conspired together to conceal the fact that said sum of money had been so turned over to said defendant H. J. Cloonan as such excess loans and that he and no other owed said obligation to said Bank; that in furtherance of said scheme, plan and conspiracy directed and caused one H. M. Blankenship to make, execute, and deliver to said Bank his promissory note in writing, dated March 27, 1941, due May 26, 1941. That said instrument was numbered 38058 in said Bank and shown therein as an asset thereof. . . . That said instrument, in truth and in fact, evidenced the indebtedness of said H. J. Cloonan and was for money which the said H. J. Cloonan had so received from said Bank in excess of any sum or sums which said Bank could legally have loaned to him. That said instrument was so made for the purpose of deceiving the corporation and persons aforesaid and to induce them to believe that said instrument was the obligation of H. M. Blankenship and not the defendant ■ H. J. Cloonan. That said H. M. Blankenship was insolvent and was without assets or credits with which to pay said note or any material portion thereof at said time and did not intend to pay the same, all of which was well known to said conspirators, who knew that said instrument was not what it purported to be — a good and valid note of H. M. Blankenship — but was being used for the purpose of deceiving, injuring and defrauding the corporations and persons aforesaid. That in furtherance of said conspiracy said defendant H. J. Cloonan and his said co-conspirators, on May 28, 1941, caused a renewal note thereof to be made by said H. M. Blankenship, numbered 38541 and carried on the records of said Bank as an asset thereof. . . . “11. That said promissory note, to-wit: Exhibit A. was by the said H. J. Cloonan and his co-conspirators caused to be made, executed and delivered and entered upon the books and records of said Bank falsely and fraudulently with the intent to cheat, injure, defraud and deceive said Bank, its depositors, Federal Deposit Insurance Corporation, its officers, agents and examiners, wrongfully and unlawfully and in violation of law, to-wit: 12 U. S. C. A. 592; 12 U. S. C. A. 264 (s), and in furtherance of the scheme, plan and conspiracy as above stated. “12. That said promissory note herein sued upon does in truth and in fact represent said obligation of said H. J. Cloonan. “13. That on June 21, 1941, for value received without notice of said con spiracy or any defects of infirmities in said instrument and having been deceived by said conspiracy and the facts above stated, plaintiff, for valuable consideration, purchased said note and is now the owner and holder thereof in due course. “14. That plaintiff has made demand upon said defendants and each of them for payment of said obligation and that payment has been refused and no part thereof has been paid.” So far as they relate to the basic theory on which plaintiff predicates its right of recovery the allegations of the pleading just quoted and those of the amended petitions in cases Nos. 37,083 and 37,085 are identical. However, it should be pointed out that in No. 37,083 the note in question is signed by defendant’s wife alone, while in No. 37,085 the only signature appearing on a similar instrument is that of Max Christman. In his brief and in oral argument counsel for appellant; although vigorously contending that the amended petitions state a cause of action against the appellee, frankly and with commendable candor concedes that appellant must stand or fall upon the premise that all three actions are upon the notes and nothing else. Stated in a different manner it is appellant’s position that appellee is liable upon the three instruments sued on to the same extent as though his signature had been affixed to and appeared thereon. We think the short and simple answer to all of appellant’s contentions with respect to its position is to be found in the negotiable instruments law of this state. G. S. 1935, 52-218, which has been in force and effect since 1905, provides: “No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided; . . .” No claim is made that any of the notes sued on come vpthin any of the exceptions referred to in the foregoing section of the statute and no decision of this court is cited wherein it has ever been held that there can be recovery on a note against a party who is not one of its signatories. We are not now disposed to so hold. This conclusion is, of course, in no sense to be construed, assuming the correctness of the allegations set forth in the amended petition heretofore quoted, as an indication there is no redress for a situation of the character set forth in such pleading. It simply means that so far as appellee is concerned appellant’s remedy was not on the notes and that whatever rights it may have had or may now have against him are not subjects for review on an appeal where the sole question involved is whether, in actions based on such instruments, its amended petitions state causes of action against him. The fact, if it is a fact, that appellee may have violated the provisions of 12 U. S. C. A. 592 and 12 U. S. C. A. 264 (s), as alleged in paragraph 11 of the quoted pleading, and therefore become subject to the penalties therein specified, does not require this court to hold, as appellant contends, that he is liable on the instruments in question regardless of the provisions of the negotiable instrument code of its own state to the contrary. Besides the sections of United States Code Annotated to which we have just referred do not provide that violations of their terms make an individual liable on a note on which his signature does not appear, and we know of no federal statute that does. In that situation we think the rule announced in Erie R. Co. v. Tompkins, 304 U. S. 64, 82 L. Ed. 1188, 58 S. Ct. 817, is more in point than the federal cases cited by appellant in support of its contention. In the opinion in that case it was said: “Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. . . .” (304 U. S. 78.) Moreover, none of the decisions on which appellant relies (see, e. g., D’Oench D. & Co. v. Federal Deposit Ins. Corp. 315 U. S. 447, 86 L. Ed. 956, 62 S. Ct. 676; Deitrick v. Greaney, 309 U. S. 190, 84 L. Ed. 694, 60 S. Ct. 480; Federal Savings & Loan Corp. v. Kearney Trust Co., 151 Fed. 720; Federal Savings & Loan Ins. Corp. v. Third Nat. Bank, 153 Fed. 2d 678; Hayes v. U. S., 169 Fed. 101), go so far as to hold that a cause of action upon a note exists against a person whose name does not appear upon the face of the instrument sued on. Turning to Mrs. Cloonan’s appeal from the order overruling her demurrer to the amended petition in case No. 37,083 we have no hesitancy in holding such action is founded upon a note. In fact the pleading in that case expressly states “That said promissory note herein sued upon is a renewal of the obligation evidenced by said note dated January 21, 1941.” With such an allegation and others of a similar nature there is no sound basis for any contention to the contrary. Neither do we have any difficulty in concluding the amended petition states a cause of action. It charges execution and delivery of the note sued on, it sets forth a copy of the instrument and it alleges, without disclosing anything to the contrary, the' appellee corporation was the purchaser thereof for a valuable consideration and is now its owner and holder in due course. That is clearly sufficient to withstand a demurrer based upon the premise appellee had failed to state a cause of action. Conceding the amended petition contains allegations that Mrs. Cloonan signed the note as an accommodation party and received no monetary consideration therefor does not make such pleading defective. Under our statute (G. S. 1935, 52-306) and our decisions (see Bank v. Watson, 99 Kan. 686, 163 Pac. 637; Sluss v. Brown-Crummer Inv. Co., 145 Kan. 12, 64 P. 2d 23; Cross v. Aubel, 154 Kan. 507, 119 P. 2d 490) an accommodation party who signs a note as maker is liable to a holder for value. The judgment sustaining J. M. Cloonan’s demurrers to the petitions in each of the three cases here involved is affirmed. The judgment overruling Helen M. Cloonan’s demurrer in case No. 37,083 is also affirmed.	[ -112, 104, -16, 77, 42, 96, 42, -98, 105, -112, -89, 83, -23, -34, 5, 127, -2, 123, -43, 106, -11, -73, 31, -30, -46, -77, -7, -107, -77, 94, -27, -9, 13, 48, -54, 21, 102, -126, -61, -42, -114, 1, 25, -55, -7, 96, 48, 104, 118, 12, 113, 30, 115, 40, 28, 70, 72, 46, 121, -67, -47, -80, -85, -59, 125, 16, 51, 7, -100, 3, -48, 62, -104, 57, 0, -23, -80, -122, -122, -12, 79, -71, 8, 102, 99, 33, -47, -17, -84, -103, 47, 126, -99, -89, -110, 72, 11, -89, -74, -103, 125, 18, 3, 126, -2, 12, 29, 109, 1, -38, -14, -111, 15, 116, -101, 11, -17, -93, 32, 96, -51, 100, 92, 70, 58, -103, -114, -80 ]
The opinion of the court was delivered by Harvey, C. J.: This was a habeas corpus proceedings. On January 27, 1948, plaintiffs filed their petition in the district court of Sedgwick county in which they alleged that they are husband and wife and the parents of Carolyn Diane Walker, aged three years; that defendants have unlawful possession and control of the child and forcibly maintain such possession and control contrary to the desires and wishes of the petitioners; that on December 3, 1947, defendants unlawfully had a guardian appointed for the child by the probate court of Sedgwick county and the same day filed a petition in that court for the adoption of the child, and that they have had possession of the child for approximately two years and nine months, and that these facts constitute the basis for defendants’ claim of legal custody of the child. Defendants filed a motion to dismiss the petition upon the ground the court was without jurisdiction, for the reason, among others, that there was pending in the probate court a proceedings for adoption of the child. Copies of the papers filed and the orders made by the probate court were attached and made a part of the motion. These will be noted more specifically later. The motion was denied and defendants were required to answer by a stated date. On that date they asked the court to reconsider the ruling upon the motion to dismiss, which motion was denied. Defendants then filed their answer in which they specifically denied that the child, “Carolyn Diane Walker is now illegally held in their custody contrary to the wishes of -the plaintiff, Violet Walker, or Norman Walker, or has ever been held contrary to their wishes”; and further alleged that custody of the child was taken at the special instance and request of Violet Walker, who had signed a consent for them to adopt the child, and that proceedings for the adoption of the child were instituted in the probate court of Sedgwick county in December, 1947. Copies of the papers filed and orders made in that proceeding were made a part of the answer. They further alleged that they had had custody of the child for almost three years, had furnished her with a good home and care, all at the express wish of the mother; that neither of the plaintiffs has ever supported or cared for the child or performed any of the duties of a parent in any manner, at all times knowing that such care and attention were being given the child by defendants; and further alleged that this proceeding constitutes a collateral attack upon the orders of the probate court in the adoption proceedings. The prayer was that the petition be denied and the writ dissolved, and for further equitable relief. The court heard the evidence and found generally for plaintiffs and decreed the defendants promptly deliver the custody and possession of the child to plaintiffs, but further decreed that to avoid inconvenience and to protect the rights of the parties the temporary custody of the child be given to Mary Threlfall Smith, to be retained by her in the Wichita Children’s Home pending the appeal taken by defendants, and if no appeal be taken within thirty days to deliver the child to the plaintiffs. Defendants filed a motion for a new trial, which was considered by the court and overruled. Defendants perfected their appeal within the time given them by the decree of the district court. In this court appellants contend that the probate court obtained prior jurisdiction of the controversy to the exclusion of the district court; that the habeas corpus proceedings constitute a collateral attack upon the jurisdiction of the probate court and was an attempted substitute for an appeal, and that the evidence of plaintiffs failed to show that the child was illegally held by defendants. The pertinent part of the record necessary to be considered here may be summarized as follows: The plaintiff, Violet Walker, was one of the ten children of C. D. Brinnigar and his wife, of Wichita. Her mother died in July, 1939. In some way she became acquainted with Norman Walker, a sergeant in the army, when he was stationed at El Paso, Tex. They were married in Juarez, Old Mexico, February 8, 1944 (and married a second time April 13, 1946, in Henrietta, Tex.). They lived together in El Paso until June of that year, when her husband was transferred and later sent overseas. She returned to Wichita, where the child in question was born November 25, 1944, a few days after she was nineteen years of age. About a month after the child was born she thought it was necessary to work. She obtained a position and placed the child in a nursing home at an expense of $15 per week. About the middle of February she concluded she could not make enough working to pay the expenses of keeping her child and herself and inquired of a friend for the name of someone who might take the child. She was referred to the defendants and went to see them and asked them if they would take the child. They had no children of their own and were willing to take the child. Mr. McNutt testified that he asked her about the father of the child and she said he was dead. She testified that he asked about the father of the child and where he was and she told him she did not know. Defendants asked her if she would permit them to adopt the child and she stated that she would have to think that over. The defendants took the child on February 18 and had the custody of her until the habeas corpus case was decided. On the day defendants were given the custody of the child Violet Walker left Wichita to seek better employment elsewhere: Defendants received a letter from the plaintiff, Violet Walker, under date of March 11, 1945, which reads: “This is the first chance I have had to write. Nobody has tried to cause any trouble have they. I didn’t tell anybody where the baby was. If anything comes up, let me know and I will straighten it out. My address down here is 372 Washington St. S. W., Atlanta Georgia Em. 9. Violet Walker.” On the date of March 16, 1945, defendants received the following telegram, collect, from Atlanta, Georgia: “I have been thinking it over. I think it is the best thing for her. I will sign adopting papers. Violet Walker.” And under date of March 21, 1945, defendants received a letter which reads: “Just got the letter this morning, there was a mixup and I had to straighten it out before I could get the letter. I had the paper Signed by a Notary Public this morning so I guess it is alright. How is everything there. Am having quite a bit of fun. Will write a longer letter as soon as I can. I hope Carolyn’s cold is better. Until I hear from you both, I remain, As Ever Violet.” Enclosed in that letter was the consent to adoption, which reads: “3-17-45. I, Violet Walker, mother of Carolyn Diane Walker do hereby consent to the adoption of Carolyn Diane Walker to Clifford McNutt 1055 N. Kansas Wichita Kansas. I do this of my own free will and hereby sign my name to this document in lieu of not having regular adoption form. (Signed) Violet Walker.” “Signed this 21st day of March, 1945, s/ Louise Head Notary Public, Georgia, State at Large. My commission expires April 20, 1947.” (Seal) Defendants heard nothing from either of the plaintiffs thereafter until the following: “November 26, 1947 Riverside, Calif. “Dear Mr. and Mrs. McNutt “I imagine you’ll think it quite surprising to get a letter from me. What I want to know is if Carolyn Diane is legally adopted yet. If so, I would like to have á copy of the adoption papers, please. I would appreciate it very much if you could let me know right away. Thank you very much. Sincerely, Mrs. Violet Walker. “Send the letter to: S/Sgt. Norman Walker 7013136 Co. ‘C’, 817th Engineers Aviation Br. March Field, California (Reverse side of letter) “I would like to know something by return mail. Thanking you very much. Mrs. Violet Walker.” Upon the receipt of this letter the defendants, on December 3, 1947, went into the probate court of Sedgwick county and filed a verified petition for the adoption of the child, which, omitting the caption, the verification and the exhibits, reads: “Petition. Come Now Clifford McNutt and Hettie Marie McNutt, whose address is 2810 Stadium Drive, Wichita, Sedgwick County, Kansas, and offer to adopt as their own child and heir Carolyn Diane Walker, minor child, born on the 25th day of Novembeer, 1944, and who is now residing with your petitioners. “Your petitioners further show to the Court that they own home, as above set out, have a substantial income, and are financially able to support and rear said child. “Your petitioners further show to the Court that said child is a child of Norman and Violet Walker, whose address is ‘Company “C,” 817th Aviation Brks., March Field, California’ and your petitioners have had said child since February 18, 1945, and that neither the father nor the mother have performed the duties of parents for more than two consecutive years, and on the 3rd day of December, 1947, Mary Threlfall Smith was duly appointed Guardian of the person of said child, and her consent to the adoption of said child by your petitioners is attached to this Petition, and made a part hereof, being marked Exhibit ‘A.’ “Your petitioners further show to the Court that the' Consent of Violet Walker to said adoption is attached to this Petition, made a part hereof, and marked Exhibit ‘B.’ “Your petitioners further shows to the Court that said child is not a ward of any institution, either public or private. “Wherefore, Your petitioners, Clifford McNutt and Hettie Marie McNutt, his wife, pray that the Court set a time and place for the hearing of this Petition on the Interlocutory Order, require the notice to be given, and upon the hearing an Interlocutory Order be issued.” * Upon the filing of this petition the court made an order, which, omitting caption and signature, reads: “Order “Now on this 3rd day of December, 1947, the above matter comes on for hearing upon the application of the above named petitioners for an order setting their Petition for an Interlocutory Order for hearing, said .petitioners appearing in person and by their attorneys, Kagey & Hamilton, By L. M. Kagey. “Thereupon, Said matter was duly presented to the Court, and the Court, being, fully advised in the premises, “Orders That said hearing upon the Interlocutory Order be set for hearing on the 14th day of January, 1948, at 10:00 o’clock A. M. in the Probate Court Room at the Court House in Wichita, Sedgwick County, Kansas, and that notice of said hearing be given to the Guardian of the person of said child by serving upon said Guardian a copy of this Order, and that notice be given to the parents of said child, Violet Walker and Norman Walker, by mailing a copy of this Order to said parents at the following address: Company ‘C,’ 817th Aviation Brk., March Field, California. “It Is Further Ordered That pending the hearing on the Interlocutory Order the petitioners, Clifford McNutt and Hettie Marie McNutt, be given temporary custody and control of Carolyn Diane Walker.” On the same date the attorneys for the petitioners, in probate court, mailed a copy of the above order to Violet Walker and Norman Walker to their address: Company C, 817th Aviation Brks., March Field, Cal. This notice was duly received as shown by the testimony of both of them given in the habeas corpus proceeding. It appears that both of them came to Wichita, and further proceedings were had in the probate court, as shown by the order of the court, which, omitting caption, is as follows: “Order “Now on this 14th day of January, 1948, the above matter comes on for hearing on the oral application of Violet Walker, the mother of Carolyn Diane Walker, a minor child, by and through her attorneys, Henry E. Martz and Lee R. Meador, for a continuance of the hearing upon the Interlocutory Order heretofore set for hearing on the 14th day of January, 1948. “The court being fully advised in the premises, finds that a continuance should be granted. “It Is Therefore Ordered that the hearing on the Interlocutory Order be continued to the 28th day of January, 1948, at 10: A. M. “s/ Clyde M. Hudson, Judge.” And on the 27th day of January counsel for the plaintiffs filed in the probate court a motion, which, omitting caption, reads: “Motion “Comes now Violet' Walker, the mother of Carolyn Diane Walker, a minor child, and respectfully moves this Court for an order denying the Interlocutory Order of Adoption for the following reasons: “1. That the guardianship proceedings No. 25996 completed on the 3rd day of December, 1947,-wherein Mary Threlfall Smith was appointed guardian, are void and that by virtue thereof the Consent to Adoption entered by said guardian in this matter is void and of no effect. “2. That there is now pending in the District Court of Sedgwick County, Kansas, a proceeding in Habeas Corpus relating to the custody of this child; that the Writ has been issued and served and that this Court is without jurisdiction to proceed further.” The record does not show that this motion has been acted upon by the probate court. On the same day that motion was filed the plaintiffs filed their petition in this habeas corpus proceedings in the district court. The pleadings and the action of the court in this case were summarized early in this opinion. We turn now to the discussion of the legal questions argued here. In the petition for the writ plaintiffs alleged that defendants, on December 3, 1947, unlawfully had a guardian appointed for the child, who gave consent to the adoption. Without entering into an analysis of the legal questions which might be discussed we shall assume, under the authority of Johnson v. Best, 156 Kan. 668, 135 P. 2d 896, that the appointment of a guardian, without notice to the parents, would not bar the habeas corpus proceedings. However, in the adoption proceedings the petition contained other grounds, namely, the consent of the mother and the failure of both plaintiffs to perform the duties of parents for more- than two consecutive years. (See G. S. 1947 Supp., 59-2102 [3], [4].) In this court counsel for appellees argued that the consent to the adoption given by the mother in March, 1945, was void on the grounds that she was then a minor, citing Wilson v. Kansas Children’s Home, 159 Kan. 325, 154 P. 2d 137. The opinion is not an authority for that contention. In that case the minor mother was unmarried. In this case she was married. (See G. S. 1935, 38-101.) In a separate concurring opinion in the Wilson case the view was expressed that this statute would not affect the question of the consent to adoption. But that was not the point upon which the opinion of the court turned. But we need not labor this point. The pleadings in this case present no issue respecting the-validity of the mother’s consent. It was not referred to in the petition. The answer alleged the consent had been made. No reply was filed, hence it was not denied, nor was it sought to be avoided. In a habeas corpus proceeding for the custody of a child the real issue is one between private parties contesting a question of private rights. (See In re Hamilton, 66 Kan. 754, 71 Pac. 817, and Wear v. Wear, 130 Kan. 205, 213, 285 Pac. 606, where additional authorities are cited.) The probate court is a court of record having original jurisdiction in adoption proceedings, and where the adoption proceedings are opposed the controversy is between the parties seeking the adoption and those opposing it. In LeShure v. Zumwalt, 151 Kan. 737, 100 P. 2d 643, it was held: “Jurisdiction of proceedings for the adoption of a child is vested in the probate court. Such, proceedings are judicial in their nature, and are unassailable by collateral attack.” In Wilcox v. Fisher, 163 Kan. 74, 180 P. 2d 283, it was held: “Valid adoption proceedings are not subject to collateral attack.” In Chamberlin v. Thorne, 145 Kan. 663, 66 P. 2d 571, it was held: “The questioning of the validity of a decree of adoption in any proceeding other than a direct appeal or a petition to set aside the adoption is a collateral attack.” See, also, 2 C. J. S. 440, 442, 443. It is also well settled in the law that a court which first takes cognizance of an action over which it has jurisdiction and power to afford complete relief has the exclusive right to dispose of the controversy without interference from other courts in which similar actions are subsequently instituted between the same parties seeking similar remedies and involving the same question. (21 C. J. S. 745.) In 39 C. J. S. 596, the rule is thus stated: “A court is without jurisdiction to interfere by habeas corpus with the exercise by another court of jurisdiction previously acquired and still existing, or at least, as a matter of comity, it should not and will not do so. “Pursuant to a general rule of wide application, on which there is no conflict of authorities, it has been held that a court is without jurisdiction where it attempts by habeas corpus to interfere with the exercise by another court of jurisdiction theretofore acquired, whether such jurisdiction is acquired in another habeas corpus proceeding or on appeal, or otherwise, unless the prior jurisdiction has been terminated.” Among the cases cited in support of the text is State v. Callahan, 93 Kan. 172, 144 Pac. 189, where it was said in the opinion: “It is a matter in which there is no conflict of authorities, that where a court of competent jurisdiction first acquires jurisdiction in a particular matter no other court can legally assume jurisdiction unless the jurisdiction of the former court is by appeal or otherwise lawfully transferred to it.” (p. 176.) In Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86, it was said in the opinion: “. . . it is a well-established rule that, in cases where two courts have concurrent jurisdiction, the court which first takes cognizance of the cause retains it to the exclusion of the other. (Shoemaker v. Brown, 10 Kan. 383; Smith v. The Eureka Bank, 24 id. 528; Kothman v. Markson, 34 id. 542, 9 Pac. 218; Gafford, Guardian, v. Dickinson, Adm’r, 37 id. 291, 15 Pac. 175.) The adjudication of the probate court in a matter within its jurisdiction is as conclusive upon the parties as is the judgment of the district court, and it should be allowed to stand unless set aside upon appeal or some direct attack.” (p. 126.) In 14 Am. Jur. 435, the rule is thus stated: “It is a familiar principle that when a court of competent jurisdiction acquires jurisdiction of the subject matter of a case, its authority continues, subject only to the appellate authority, . . .” And on page 436 it is said: “An essential condition of the application of the rule as to priority of jurisdiction is that the first suit shall afford the plaintiff in the second an adequate and complete opportunity for the adjudication of his rights, . . .” And on page 439 it is said: “Where the pendency of a suit in one court is relied on to defeat a second suit in another court of concurrent jurisdiction, the identity of the parties, of the case made, and of the relief sought should be such that if the first suit had been decided it could be pleaded in bar as a former adjudication.” Upon the authorities above cited it is clear that had the adoption proceeding continued in the probate court in favor of the petitioners there, that proceeding might have been pleaded effectively as a bar for this habeas corpus proceeding. Upon the record before us it is clear that a valid petition for adoption had been filed in the probate court (G. S. 1947 Supp. 59-2277). The probate court had made temporary orders thereon, as authorized by statute (G. S. 1947 Supp. 59-2278), fixing the date for hearing upon the interlocutory order and requiring notice thereof to be given to the child’s parents, and further ordered “That pending the hearing on the Interlocutory Order the petitioners, Clifford McNutt and Hettie Marie McNutt, be given temporary custody and control of Carolyn Diane Walker.” Notice was given to the parents of the child, Violet Walker and Norman Walker. They received the notice and acted upon it. One of them appeared in court and sought and obtained a continuance of the hearing and appeared a second time asking that the case be dismissed. The proceedings pending in the probate court involved the respective rights of the parties to the custody of the child. That was the issue involved in the habeas corpus proceeding. Appellants contend the court in the habeas corpus proceeding had no evidence upon which to base a holding that the defendants had the custody of the child unlawfully. The point is well taken. In fact the record clearly shows they had the child with the consent of the mother and with no objections from either the father or the mother for almost three years; that in addition to that consent they had the consent of the mother for their adoption of the child. Prior to the filing of the habeas corpus proceeding neither the father nor the mother had made any demand upon defendants for the custody of the child, or said anything to them which indicated that their custody of the child was either unlawful or against their wishes. But even more effective was the order of the probate court of December 3, 1947, specifically giving defendants the temporary custody and control of the child pending further hearing in that court. The result of what has been said is that the judgment of the trial court must be reversed with directions to return the child to the appellants and to dismiss the habeas corpus proceeding. It is so ordered.	[ -15, 108, -28, 28, 59, -31, 58, 26, 83, -93, -89, 115, -85, -58, 4, 105, 123, 45, 81, 121, -61, -77, 87, 65, -14, -14, -80, -33, -77, -23, -12, 86, 76, 48, -126, -15, 66, -118, -121, 18, -50, 1, -71, -20, -125, 2, 48, 57, 62, 15, 85, 14, -89, 42, 62, -57, 40, 47, -37, -71, -112, -20, -115, 23, -113, 2, -93, 102, -120, -91, 122, 46, -112, -80, -128, -24, 51, -74, -114, 116, 79, -103, 8, 100, 98, 0, -51, -9, -8, -103, 110, 62, -99, -90, -110, 48, 72, 1, -65, -67, 116, 16, 43, 122, 47, 12, 28, -28, -28, -50, -42, -79, 15, 56, -120, 3, -61, 33, 18, 112, -105, 112, 85, 99, 51, -69, -58, -6 ]
The opinion of the court was delivered by Harvey, C. J.: About 10 o’clock the morning of February 3,1947, the appellant, George Miller, a colored man, shot and killed M. F. (Mike) Churchill, the chief of police of the city of Osawatomie, and promptly fled the scene of the homicide. News of the tragedy spread rapidly and police officers, deputy, sheriffs and citizens searched for Miller. Some two and one-half or three hours later they located him in the loft of a garage about three blocks from the scene of the homicide, and the officers took him into custody. Perhaps 75 to 100 persons, some of them with guns, who had joined in the search for Miller, were present in or about the garage when he was taken into custody. The officers quelled any outbreak or attack by the persons gathered there, and to further quiet public feeling took Miller to Lawrence and placed him in the Douglas county jail until the next day. On the day following the homicide, and while at Lawrence, appellant employed to represent him LeRoy E. Harris, an attorney of his own race, who previously had been admitted to practice law in the supreme court and all inferior courts of the state. The county attorney filed with a justice of the peace of the city of Osawatomie a complaint charging George Miller with murder in the first degree, upon which a warrant was issued and duly served. The preliminary examination was held on February 10. Mr. Harris was present with his client and cross-examined the witnesses who testified for the state. After hearing the evidence the justice of the peace found that the crime charged had been committed and that there were reasonable grounds for believing defendant committed the offense, and made an order holding him for trial in the district court without bond and committing him to the custody of the sheriff. Thereafter the county attorney filed in the district court an information charging George Miller with the willful, deliberate and premeditated killing of M. F. Churchill, contrary to our statute (G. S. 1935, 21-401). On March 5, 1947, the case was- called in the district court for arraignment and plea. The defendant was present in court 'in the custody of the sheriff and was represented by his attorney, LeRoy E. Harris, when the following proceedings were had. “Mr. McQueary (county attorney): At this time the State desires to have the defendant arraigned on the charges contained in the information. “The Court: Very well, you may stand. (Defendant stands before the court.) “The Court: You are George Miller? A. Yes sir. ' “The Court: And you are represented by LeRoy E. Harris? A. Yes sir. “The Court: Your attorney? A. Yes sir. “The Court: Have you had a chance to talk with your attorney? A.;-Yes sir, I have. “The Court: Did you talk to your attorney this morning? A. Yes, a little bit. “The Court: . An Information has been filed charging you with murder in the first degree and what we are doing now is to arraign you. That is, we are informing you of this charge. The charge will be read to you by the clerk and you will listen to the reading of this Information and aftey the Information has been read then you will be asked to plead, but before you plead the Court must further talk t6 you. You will now listen to the 'reading of the information. (The clerk here reads the Information.) “The Court: Defendant, George Miller, you will now be required to plead to the Information. You may stand mute and not answer anything, in which event the Court will order a trial to a jury, and you may enter a plea of Not Guilty or you may enter a plea of Guilty. “Now, a plea of guilty to an Information charging murder in the first degree means that you may be imprisoned for life or'that you may suffer the death penalty. Now, having been informed by the Court and 'I take it informed by your attorney, how do you plea to the -Information just read .to you? “Mr. Harris: Guilty, Your Honor. “The Court: What does the defendant say about it? A. (By the defendant) Guilty. “The Court (addressing defendant): Is that your plea? A. Yes sir. “The Court: You enter a plea of guilty to this Information? A. Yes sir “The Court: And you understand now what that plea may mean?- “Mr. Harris: Yes sir. . “The Court (addressing defendant): Do you understand that — so the Reporter may get it? A. Yes sir. “The Court: You may be seated. (The defendant is seated.) “The Court: The Court has noted and entered your plea of guilty. That, however, doesn’t end the matter because under the law the determination of the punishment will have to be by the Court. The Court takes it -that under the law that even .a plea of guilty is not a final determination but- the plea also has to be approved and in order to determine the matter of punishment and acceptance of the plea the Court will hear evidence.” There was colloquy between court and counsel as to when the evidence could be presented. During this the court said: “There is no hurry and the defendant still has his rights to have the evidence presented and heard and considered and .he still has the right to offer evidence which he might de.em expedient. . . . The State has the names of a good many witnesses endorsed on the Information. It may not be necessary to hear all of those witnesses but it will be necessary to hear such of them as will be sufficient, to fully inform the Court' as to the circumstances surrounding the transaction. The defendant also will be heard as he wishes and it-is believed by the Court that it would be probably better to set a time for this hearing, considering all the circumstances and then the County Attorney, may select such witnesses as will properly inform the Court and have these witnesses present by subpoena and likewise if the defendant wishes to call any witnesses he may have subpoenas for such witnesses as he may wish to call. ... “This case is continued for further proceedings to 9:30 in the forenoon on March the 11th, at which time the witnesses will be heard. The defendant is remanded to the custody of the sheriff and if his attorney wishes to further confer with him you may do so. “Mr. Harris: All right.” On March 11, when the case was called in court, the state appeared by the county attorney; the defendant appeared in person by his attorney, Mr. Harris. The state introduced the testimony of eleven witnesses. We summarize only the pertinent portions of this evidence. Defendant’s wife, called as a witness, was informed by the court that she was privileged not to testify'. She waived that privilege and testified that she and her husband had been married almost eight years. Apparently it was the second marriage for each of them. Defendant is a man who did not drink and was regarded as a “peaceful citizen” with others. They lived in Osawatomie and owned their home. The defendant worked for the railroad. He was acquainted with M. F. Churchill, the chief of police, and knew that he represented “the law.” Churchill was also acquainted with defendant. The witness testified that on the night before the homicide, and for two or three days prior thereto, she and defendant had been having trouble over money matters and about a pistol and a shotgun; that he had menaced her with the guns and struck her; that on the morning of February 3 she went .to the police judge and swore to a complaint for defendant’s arrest. The charge that was made was not disclosed by the transcrijpt, but obviously it was for the violation of some city ordinance. Upon that complaint, a warrant for the arrest of defendant was placed in the hands of Churchill, the chief of police, for service. He and Harvey Earp, the city engineer, who acted as his chauffeur, went to defendant’s home, but did not find him there. They looked for him at other places about town and finally got Mrs. Miller and returned to defendant’s home, found it locked, but Mrs. Miller was able to get in, and the house was searched. The defendant was not in the house. His wife suggestéd that he might be at the garage and the three of them started toward the garage on a cement walk, Churchill in the lead, Mrs. Miller following, and Earp following her. Churchill was wearing his uniform as.chief of police, with a cap and insignia of his office. He called defendant’s name twice in a loud voice, but had no response, and continued to walk toward the garage. When five or six feet from the building he was struck in the breast with a charge from a shotgun fired through a hole in the door of the garage. Churchill started to walk back toward the house, but sank down and died in a few minutes. Within two or three minutes after the shot was fired defendant was seen running from the garage as though he had left it from the back door. Earp also testified to the homicide and the incidents leading up to it and to what he did afterwards in calling the other police officers and getting word to the sheriff. The news spread rapidly about town. Witnesses who examined the garage from which the shot was fired soon after the shooting found that part of a board had been torn from the door of the garage and it had been cut away with a knife, making a place large enough that one inside the garage could see through it and shoot through it. There were powder burns on the wood about the hole, indicating that the muzzle of the gun was near there when the shot was fired. Defendant’s double-barreled shotgun was found in the garage. One barrel had been shot and the empty shell was lying on the floor. Also defendant’s knife was lying open on a box in the garage. Several witnesses testified that they had known defendant for some years, and the police judge testified that no warrant had previously been issued for defendant from his court. There was no testimony that defendant had a quarrelsome disposition or a bad character in any respect prior to the homicide. The sheriff testified that one day he asked defendant why he had shot the chief of police and he answered that he was mad. Defendant’s attorney, Mr. Harris, cross-examined eight of the witnesses. From one of the witnesses who was present at the time defendant was taken into custody he inquired if there had been confusion among the people who had gathered there, or any threats made at that time against defendant, or if defendant was manhandled in any way, and specifically if he was kicked or hit in the mouth, and received negative answers to each of the questions. Counsel for defendant asked another witness who was present when defendant was taken into custody if defendant had been, dragged by a rope, and if the witness had seen a picture in the Kansas City Star showing defendant with a rope about his foot. The witness knew nothing of either of those matters. The sheriff testified that after defendant was taken to the county jail at Paola there was no demonstration about the jail, and there is no contention that such demonstration had been made against defendant at the time of his preliminary examination in Osawatomie at any time he appeared in the district court or at any time after he was taken into custody. While the testimony was being taken there were introduced into evidence various exhibits: Several photographs of the scene of the homicide, the garage door with the hole that had been made in it and the powder burns thereon, the shotgun used, the shell from it, defendant’s open pocketknife, and some other items. Counsel for defendant made no objection to the introduction of any of these exhibits, but specifically announced to the court “No objection.” Following the testimony of witnesses called by the state the record discloses the following: “The Court: Does counsel for the defendant wish to have Mr. Miller to make any statement under oath? “Mr. Harris: Why? “The Court: The only issue the Court has to decide is the punishment. “Mr. Harris: That is all. “The Court: The defendant is before the Court on a plea of guilty and the defendant may or may not make a statement. He isn’t required to testify. If he has anything, however, to offer and counsel thinks he should offer it, the Court, of course, will hear him.” After defendant and his attorney conferred the following occurred: “Mr. Harris: If Your Honor, we have no testimony to offer and we rest our portion of the case. “The Court: The Court may wish to ask some questions, which the defendant can answer if he wishes to. The Court will try to avoid any questions that will further incriminate him, but it is necessary that the Court have further information about this situation. Is that satisfactory? “Mr. Harris: LeRoy E. Harris, attorney for the defendant in this case, hereby agrees the Court is permitted or can question the defendant in any manner that it sees fit.” Thereafter the court asked, defendant questions which brought out the fact that he did not go to school very much, that he went to school in Mississippi, that at Osawatomie he did railroad work on track maintenance. ' He stated that he' knew Mr. Harris, his attorney, had known him three or four weeks; that he became acquainted with him at Lawrence; that he hád seen Mr. Harris several times since he was arrested; that Mr. Harris had talked with him several times; that when he was brought into court Mr. Harris was there each time, and defendant talked with him; that at no time since he was arrested had anyone tried to harm him physically; that he had gotten along all right with the sheriff and the sheriff’s force. Cautioned that he might answer the question or not, as he wished, he was asked if he had ever been in the penitentiary or in jail for any offense before this, and answered in the negative.. The following questions were asked and answered: “Q. You remember when you were asked to plead guilty or not guilty the other day — do you remember that? A. I do. “Q. Before you were asked to plead, had anyone made any promises to you? Had the county attorney made any promises to you before you entered your plea? Did he tell you what would happen to you if you entered a plea of guilty? A. No, he didn’t. “Q. And you didn’t talk to the judge — you didn’t talk to me about it except here in the courtroom? A. No, sir. “Q. So I understand that no one at all, the county attorney or no one else, before you entered your plea, made any kind of promises to you or told you how to plead? A. No.” The parties having rested, the court accepted defendant’s plea of guilty and announced a recess until March 15. On that date the parties appeared in court as before and the following proceedings were had: “The Court: Mr. Harris, although testimony was taken in this case, does the defendant have anything more to say to the Court by way of informing the Court? Any other voluntary statement to make at this time? “Mr. Harris: We have nothing further to present to the Court at this time, Your Honor. “The Court: You have had an opportunity this morning to confer with your client? “Mr. Harris: Yes, Your Honor.” The court noted the fact that no notice of the filing of a motion for a new trial had been given, which normally should be heard be fore the sentence, but suggested the supreme court might be lenient in that respect. The court then, at some length, reviewed the history of the case as shown by the record and the evidence, concluded that all of the elements of first degree murder were definitely shown, took note of the fact that the deceased was a peace officer in the performance of his normal duties, and concluded that “The tragedy, so far as the facts are concerned, is simply a cold-blooded murder of an officer,” and inquired of defendant: “Mr. Miller, at this time do you have any legal cause to offer why sentence and judgment of the Court should not be pronounced upon you? “Mr. Harris: None, Your Honor. “The Court: I want to hear from Mr. Miller. “Mr. Miller (the defendant): I ask that the Court please forgive me. “The Court: The Court, of course, [recognizes] that you stand here inthe meekness of remorse, but it is not a legal reason to avoid the consequences of the crime. . . . Does the attorney for the defendant have anything to say? “Mr. Harris: No, we have no more, Your Honor, to say. “The Court: It is the judgment, sentence and order of the Court that you, George Miller, on your plea of guilty to murder in the first degree and after heai'ing the evidence thereon, shall be punished by being hanged by the neck until dead, between the hours of five and six o’clock in the forenoon of Friday, May 2nd, 1947, at the penitentiary at Lansing, Kansas, and the cost of this prosecution assessed against you. You may be seated.” The court gave further directions for the preparation of the warrant by the clerk to be delivered to the sheriff. After the sentence was pronounced and on the same day the attorney for defendant filed a motion for a new trial upbñ the grounds, (1) that the judgment was rendered contrary to the law and evidence; (2) that the decision of the court was erroneous and contrary to the evidence; (3) that new evidence had been discovered which will throw new light on the subject of this matter-in that defendant has a-silver plate in his head which causes defendant to act peculiar at times; (4) that no premeditated intention was shown; (5) that the circumstances did not show that anyone saw the commitment of the crime; (6) that certain exhibits were admitted in evidence which were of no force and which were detrimental to defendant; (7) that certain witnesses were used as experts, contrary to law; and (8) that the verdict should be set aside and a new trial granted on account of prejudicial statements which jeopardize the interests of defendant. This motion for a new trial was heard by the court on March 19. No additional evidence was offered. After hearing arguments of counsel the motion was overruled. Upon the same date defendant served and filed a notice of appeal to this court. The appeal was docketed in this court on March 20, 1947. Upon application of appellant the court, on April 4, made an order staying appellant’s execution pending the further order of the court, and set the case for hearing on June 6. By that date no abstract, as required by our Rule 5, had been filed by appellant and the county attorney had filed a motion to dismiss the appeal. Counsel for appellant filed a. typewritten transcript of the proceedings in the district court. He also filed a motion for continuance upon the ground that another attorney, Frank B. Dodds, of Lawrence, had been employed to assist in preparing and presenting the appeal, and that the time for the preparation and presenting of the abstract and brief of appellant were inadequate, for several reasons stated. The court continued the case to October, with a specific provision that appellant’s abstract and brief should be filed by August 15 or the appeal would be dismissed. On August 15 counsel for appellant filed one typewritten copy of what was denominated an abstract, but which lacked much of being an abstract as contemplated by our Rule 5. Attached to this document was an original affidavit of the appellant, verified July 23, 1947. In this he stated that at the preliminary hearing and at his hearing in the district court he pleaded guilty because of fear of mob violence and of the results that usually come when a mob attacks a negro; that when he was taken to the jail in Douglas county the Miami county officers told him that he should plead guilty, and at the time they were beating him, or had beaten him, they were doing so to make him confess, and that it would do no good for him to complain about his mistreatment when he was arrested; that when he was arrested two policemen were present and permitted the beating to go on and took part in it, and that by fear of what might happen to him he confessed to the murder in the hope of not being hanged by a mob and in the hope of leniency in the case of conviction; that at the time of his arrest he was beaten and mistreated at the hands of a mob composed of officers and others, and the resulting injuries, as detailed in the affidavit, were severe; that he could not hear well and did not understand what was going on in court; that he had had no chance to consult privately with his attorney before the preliminary hearing or when he entered his plea, and that he never had been permitted to talk to an attorney privately'until Mr. Dodds visited him in the penitentiary. There was also attached to the abstract the affidavit of his attorney, LeRoy E. Harris, who in substance testified that he had not been permitted to talk to defendant privately; that each time he had seen him the defendant showed evidence of severe injuries; that his client could hardly understand questions asked him and was in great misery and pain, and that the affiant did not learn of all of these matters until after the appellant was in the penitentiary. Counsel for appellant also filed a brief, largely devoted to the injuries of appellant at the hands of a mob at the time of his arrest and that thereafter defendant was in fear of his life and felt that he would not have protection even by a friend; that he was under that fear at the time he entered his plea in the district court, and cited several cases having to do with the actions of a mob when a negro was charged with crime. We need not detail all these statements. The court examined this abstract and brief and concluded they presented no error of the trial court which would justify reversal, but the court was concerned about the statements made in the affidavits of appellant and his attorney. Obviously they had no place in an abstract, since they were never presented to the trial court, and for that reason might have been stricken from the files. However, this court has been careful to inquire into any claims of mistreatment of a prisoner by officers, or by others with the permission of the officers (see, for example, State, ex rel., v. Jackson, 139 Kan. 744, 33 P. 2d 118; 100 A. L. R. 1394), and thought that matter should be inquired into. In order that this might be done the court, on August 18, made an order, with the consent of appellant’s counsel, appointing Edward Rooney, a lawyer with many years of experience in trial work and in the trial of criminal cases, and the instructor in Criminal Law in Washburn University School of Law,, to assist the attorneys for the appellant and to take such further1 proceedings in this court, or in the trial court from which the appeal was taken, which he should deem necessary or proper to have adjudicated the legal rights of appellant. Mr. Rooney accepted this appointment, and after familiarizing himself with the case and the proceedings therein he filed a habeas corpus action in this court which raised not only the question of the action of the so-called mob, but other questions which were deemed pertinent to preserve appellant’s rights. After-issues were joined in that proceeding the court appointed a commissioner to hear the evidence, and make suggested findings of fact and conclusions of law. This was done and the case was properly assigned and presented to this court and an opinion filed (164 Kan. 688, 192 P. 2d 147) denying the writ of habeas corpus. ; The evidence in the habeas corpus case thoroughly discounted the inaccurate statements made in the affidavit of appellant and of his attorney filed originally in this court in this case. Indeed, it showed clearly that the chief law enforcement officer of the city, in the performance of the routine duties of his office, and without provocation on his part, had been assassinated by one lying in wait, who fled, still armed with a revolver. The news of the tragedy spread rapidly. Officers and citizens joined in the search. Naturally some of them were armed, not only to effect his arrest but to protect them.selves. When he was taken into custody there were some present who might have done him bodily harm, not because he was a negro, but because of the thought that he was a dangerous killer. The officers present promptly quieted all attempts of that character, protected him and took him to a place of safety, and thereafter there was nothing to suggest any interference with the ordinary judicial procedure. The affidavit of the appellant and of his attorney should never have been filed in this court. The inquiry upon that question, as well as others suggested in the habeas corpus proceeding, gives this court confidence of the judicial regularity of the proceedings, not only at the time appellant was taken into custody but thereafter at his preliminary examination and throughout the proceedings in the district court. .. After the filing of our opinion in the habeas corpus, case this case was set for hearing May 7,1948, and was duly argued and presented. Prior to that time appellant’s counsel had filed a motion to dismiss the appeal. This motion was denied, for, as we interpret our statute (G. S. 1935, 62-2414), when a case of this kind has been appealed and the execution of appellant has been stayed pending the appeal, the judgment of the trial court should be affirmed or reversed. If affirmed this court must appoint a day certain and order the execution of the sentence of the trial court. If the judgment of the trial court is reversed this court would order a new trial, or that the defendant be discharged. Later, appellant’s attorney, Mr. Dodds, filed a motion asking permission to withdraw the motion to dismiss the appeal previously filed by him and Mr. Harris. This was denied as a matter of course. Also Mr. Dodds and Mr. Rooney, as attorneys for appellant, filed a motion asking this court “to consider as a part of the appeal proceedings the testimony, evidence and facts brought forth in the habeas corpus case.” This motion was denied for the reason that any case which reaches this court by appeal must be heard and decided upon the record in the trial court from which the appeal is taken. Our statutes pertinent to this appeal are neither lengthy nor difficult to understand. G. S. 1935, 21-401, reads: “Every murder which shall be committed by means of poison or by lying in wait, or by any kind of willful, deliberate and premeditated killing, . . . shall be deemed murder in the first degree.” The information in this case was drawn under that section. There is no contention that it did not clearly charge murder in the first degree. Defendant by his plea of guilty confessed all its allegations. Our statute fixing punishment for murder in the first degree (G. S. 1947 Supp. 21-403), so far as here pertinent, reads: “Every person convicted of murder in the first degree shall be punished by death, or by confinement and hard labor in the penitentiary of the state of Kansas for life. If there is a jury trial the jury shall determine which punishment shall be inflicted. If there is a plea of guilty the court shall determine which punishment shall be inflicted, and in doing so shall hear evidence: . . .” The record previously set out herein disclosed that the trial court followed this statute. The court made it plain to defendant and his counsel that he was doing so, and the record indicates that they thoroughly understood it. We are neither authorized nor have we any disposition to debate the question of the wisdom of capital punishment. The legislature determines the policy of the state in that regard and enacts statutes which the courts are bound to follow. The trial court followed the statute in this case. Upon the final submission of this ease there was no contention made that the trial court should have granted a new trial. In fact, the motion for a new trial was filed out of time. Our statute (G. S. 1947 Supp. 62-1723), clearly contemplates that the motion should be filed and passed upon before sentence. But, passing that, the grounds of the motion were frivolous in view of the record, with the possible exception that new evidence might be offered upon the hearing of the motion. No new evidence was offered or tendered. Upon the final submission of this case the question, ably argued by counsel, was to this effect: That in hearing evidence before passing sentence the court had before it all the evidence pertain ing to the homicide, but did not have before it all the evidence which might have been produced respecting the past life, the good citizenship, the industrious, peaceful disposition of defendant, to enable the court to reach a just determination as to whether the punishment should be life imprisonment or death. The proceedings before the trial court, hereinbefore set out, clearly disclose that the court heard all of the evidence respecting that, or any other matter, which appellant or his counsel desired to present. Also we think it clear from the record that the state never made any attack upon the good citizenship of defendant prior to the offense for which he was convicted. The only evidence pertaining to that matter which crept into the testimony offered by the state tended to show that appellant had been an industrious, peaceable citizen prior to the homicide. In addition to that a presumption to that effect would be indulged, since his character in that regard had not been attacked. So it cannot be said that the court, in pronouncing sentence, did not take into consideration the fact that defendant, previous to the homicide in question, had been an industrious, law-abiding, peaceable citizen. And the court specifically and on the day of sentence advised defendant and his counsel that they might be heard upon any matter they wished to present. We see nothing more the court could have done unless the court itself would have selected persons to be examined, had subpoenas issued for them and had them brought into court to testify. Certainly the court was under no duty to do that. There is at least a possibility that defendant did not want additional evidence upon those matters, but preferred to stand upon what evidence had been shown respecting his good character and the presumption which naturally would be indulged by the court in the absence of an attack of his character by the state. In a case such as this the legislature has placed upon the trial court the authority and the duty of determining what sentence should be imposed upon the defendant. The record discloses the trial court performed that, duty conscientiously and legally. Its judgment, therefore, should be affirmed and an appropriate order made to carry the sentence into execution. It is so ordered. Cowan, J., not participating.	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The opinion of the court was delivered by Cowan, J.: The petitioner was convicted of statutory rape, in the district court of Lyon county, Kansas, on March 14, 1946, after trial by jury. He was originally arrested for commission of a misdemeanor. He now claims that, while being held in the city jail on such charge, an unlawful search was made of his living quarters and evidence obtained which was used in his trial which resulted'in his conviction on the charge of statutory rape. He contends that this violated his rights under the constitution of the state of Kansas and the constitution of the United States. It appears from the record that when the officers searched his living quarters they found a fifteen-year-old girl present who admitted to the officers she had been living with the accused without being married to him. A statement was obtained from her which formed the basis of the charge against the petitioner and her testimony was used to convict him of statutory rape. Needless to say, the claim of the petitioner of violation of his constitutional rights in this respect is without merit. Another ground of the application is that the petitioner was proceeded against by information rather than by grand jury indict ment. This was ruled adversely to petitioner in Bailey v. Hudspeth, 164 Kan. 600, 191 P. 2d. 894. The next charge is that the petitioner was denied the right of proper representation by counsel and of a fair and impartial trial by jury. There have been submitted to this court, in addition to the record and the verified application of the petitioner, the affidavits of the district judge who tried the case and of the attorney who represented the defendant. The testimony shows that the information was* filed February 25, 1946, charging in count 1, statutory rape, and in count 2, forcible rape. Counsel was appointed by the court on April 26, 1946, and at the request of the petitioner, George Allred was named to represent him. George Allred had been consulting with the petitioner since shortly after February 25, 1946. On May 10, 1946, the second count of forcible rape was dismissed. On May 14 the case was tried by the jury, which, on the same date, returned a verdict of guilty on the only count. Notice of intention to file motion for new trial was given forthwith, the motion was filed, afterwards was argued, and overruled on May 18, 1946. It appears that every consideration was afforded the defendant in that trial. He demanded the right to make his own opening statement, to cross-examine the state’s witnesses and to examine his own witnesses. He was afforded these privileges. He did not permit his counsel to try the case for him but, neverthless, his attorney helped him in every way possible. The defendant was permitted to make an argument to the jury. His attorney likewise made a short argument. We' find nothing in the record and the evidence to warrant an inference that the petitioner was not afforded a fair and impartial trial by jury. His interests were safeguarded at every step. All witnesses whom he named were subpoeaned and appeared in court. He complains that the information did not set out the sections of the statute under which he was charged. There is no requirement that such be done. Another ground of the petition is that there were never any commitment papers on file in the office of the clerk of the district court of Lyon county, Kansas. The records show that a commitment was issued by the clerk. The only instrument the sheriff needed to carry out the judgment and sentence of the court was a certified copy of the journal entry. (McKie v. State, 74 Kan. 21, 85 Pac. 827.) The petitioner complains that he was rushed through the trial of the case and sentence passed upon him on the same day by the judge of the district court. There is no provision that the trial of a case must be continued over more than one day. It was not prejudicial error for the court to sentence him on the same day the verdict was rendered. The petitioner’s motion for new trial was heard and passed upon four days after sentence. Thus the prisoner and his attorney were afforded sufficient time to prepare for an exhaustive presentation to the court of the motion for new trial. The petitioner urges that the court wrongfully instructed the jury. That is an error, if any, that can be raised only on direct appeal and not in an application for a writ of habeas corpus. This court finds that the petitioner was properly and adequately represented by counsel; that he was afforded a fair and impartial trial by jury; that his constitutional rights were not in anywise invaded. In this connection it has been held by this court that a petitioner convicted of crime, who seeks to attack the judgment under which he was sentenced, on the ground of violation of his constitutional rights, has the burden of proving, by a preponderance of the evidence, that such rights were violated. His unsupported and uncorroborated statements in a proceeding in habeas corpus do not sustain such burden of proof or warrant the granting of the writ. (Long v. Hudspeth, 164 Kan. 720, 192 P. 2d 169, and cases therein cited.) There is a further complaint which merits additional consideration. The petitioner alleges that the journal entry of judgment does not make any reference to sections of the statute under which the verdict of the jury was renderd and under which he was sentenced. G. S. 1947 Supp., 62-1516, reads in part as follows: “When judgment is rendered, or sentence of imprisonment is imposed, upon a plea or verdict of guilty, a record thereof shall be made upon the journal of the court, which record among other things shall contain a statement of the offense charged and under what statute; the plea or verdict and the judgment rendered or sentence imposed, and under what statute, and a statement'that the defendant was duly represented by counsel, naming such counsel, or a statement that the defendant has stated in writing that he did not want counsel to represent him. . . .” (Emphasis supplied.) This act was effective April 12, 1941. The journal entry of judgment in this case does not comply with the above provisions of the statute. Such journal entry, being merely incomplete, does not render the judgment either void or voidable. The description of the charge is definite, the verdict of the jury is clear, and the judgment and sentence leave no doubt as to punishment inflicted. The verdict is valid. If the sentence imposed had been void, the proper procedure would be to return the defendant to the district court of Lyon county for resentence. (Brandt v. Hudspeth, 162 Kan. 601, 178 P. 2d 224.) We do not feel such a procedure is necessary here, as the sentence is not void, but the journal entry is merely incomplete. To the end that full information may be set forth in such journal entry, we direct the following procedure: The attorney general is directed forthwith to prepare a new form of journal entry which, in addition to the matters contained in the former journal entry, shall specifically state under what section of the statute the defendant is charged, the statute under which the verdict was rendered or plea entered (if it be different from that under which the offense is charged); the statute under which the penalty is imposed and the judgment rendered, and, if the prisoner was sentenced under the indeterminate sentence act, an appropriate reference to that act. The attorney general shall serve a copy of such proposed form of journal entry on counsel appearing in this case for the petitioner and upon the petitioner in the state penitentiary, together with notice of the time of hearing in the district court of Lyon county of the proceedings for the completion of such journal entry. Such journal entry shall set forth that notice has been given to petitioner and his attorney of the time and place of hearing of the proceedings for the completion of the journal entry and that a copy of the form of the journal entry proposed has been served on the petitioner and his attorney. At the time stated in such notice, the attorney general shall submit such form of journal entry to the district judge, and .a certified copy of the journal entry signed by the judge shall be forwarded by the clerk of the court immediately to the warden of the state penitentiary and another certified copy shall be forwarded to the clerk of this court and filed in this case. The prisoner need not be returned to Lyon county to attend the proceedings to complete the journal entry, as it is not customary for the prisoner to be present when a journal entry is signed by the judge. It is sufficient if prisoner’s counsel approves the form executed by the court. When the journal entry has been completed in the manner herein set forth, the application for the writ will be denied. It is so ordered.	[ -80, -24, -3, -97, 43, -30, 42, -100, 2, -77, 39, 83, -87, -54, 4, 122, -102, 47, 84, 120, -49, -73, 103, -63, -14, 123, -7, -43, -77, -49, -82, -12, 72, -16, 66, -11, 102, -56, -59, 92, -114, 7, -119, -44, 82, -120, 36, 127, 72, 15, -79, 30, -13, 42, 28, -45, -87, 44, -53, -68, 72, -111, -85, 21, -53, 22, -77, 6, -106, -123, 112, 39, -104, 48, 0, -8, -69, -90, -122, 118, 111, -87, 45, 98, 98, 33, 45, -17, 44, -103, 63, 59, -67, -89, -102, 72, 96, 100, -66, -103, 100, 84, 47, 122, -29, 45, 21, 108, -117, -53, -76, -111, -49, 56, 2, -37, -29, 33, 16, 113, -57, -10, 76, 87, 120, -101, -114, -74 ]
The opinion of the court was delivered by Smith, J.: This is an action in habeas corpus wherein petitioner seeks to be released from confinement in the state penitentiary at Lansing. When the petition was originally filed in this court we sustained the motion of respondent that it be made more definite and certain. This was done and an amended petition filed. We appointed counsel for this petitioner as well as several others who were being held at the penitentiary at Lansing or the industrial reformatory at Hutchinson. The respondent filed an answer and- the case has finally been submitted. The petitioner pleaded guilty in the district court of Lyon county to the crime of murder in the first degree. He was sentenced tó be confined for the balance of his life at the state penitentiary at Lansing, where he is now being held. He first argues that he was denied due process of law because he was not indicted by a grand jury but was brought to trial by means of an information filed by the county attorney. We have heretofore considered and settled that question against the contention of petitioner in the case of Bailey v. Hudspeth, 164 Kan. 600, 191 P. 2d 894. The petitioner asks us to reconsider that decision. We appointed able counsel for petitioner in that cáse. It was ably presented. We considered the question carefully when the case was presented to us and on a motion for rehearing. We see no reason to change our decision now. . The petitioner next complains that he is being wrongfully held because he was caused to go to trial before forty-eight hours had elapsed following the reading of the state’s information. He cites G. S. 1935, 62-1301, which section provides, as follows: “All indictments and informations shall be tried at the first term at which the defendant appears, unless the same be continued for cause. If the defendant appear or is in custody at the term at which the indictment or information is found, such indictment or information shall be tried at that term, unless continued for cause.” He also points out G. S. 1935, 62-1302, which section provides as follows: “ ... If the defendant pleads and goes to trial without objecting for the want of such copy, the neglect of duty by the clerk will not be sufficient ground to set aside the verdict.” He makes no argument that the copy of the information was not served upon him, as required by G. S. 1935, 62-1302. The record does not disclose nor does he contend he objected to going to trial not later than forty-eight hours after this was served upon him. Under such circumstances, this conduct, if it happened, is not any grounds for the release of this petitioner. (See Maxwell v. Hudspeth, 160 Kan. 553, 164 P. 2d 134, and Crebs v. Hudspeth, 160 Kan. 650, 164 P. 2d 338.) Defendant next contends that the journal entry of judgment violated the fourteenth amendment to the federal constitution because it did not state the section of the statute under which he was senenced. No doubt the petitioner refers to a failure to comply with G. S. 1947 Supp., 62-1516. This statute does provide that the journal entry shall show the statute under which the defendant is charged, also the statute under which he was sentenced. The journal entry in this case did show the statute under which defendant was charged, that is G. S. 1935, 21-401, but did not, however, state the section under which he was sentenced. (See G. S. 1935, 21-403.) G. S. 1947 Supp., 62-1516, became effective April 12, 1941. The petitioner was sentenced April 25,1941; hence this act was in effect. It appears that the journal entry in this case did not comply strictly with that section. It does not follow, however, that the judgment is void on that account. The petitioner was deprived of no constitutional right because strict compliance was not had with that section. Later on in this opinion we shall state what action shall be taken on account of this failure to comply with the statute. The petitioner next argues that his confinement is illegal because there were no commitment papers on file in the district court of Lyon county, Kansas. We do not find nor does the petitioner point out any statute which requires that any commitment papers should be on file in the office of the clerk of the court. Certainly there is no constitutional provision requiring such. Petitioner next argues that he is being improperly held and his sentence is void because the information failed to state the section of the statute under which he was to be tried for murder in the first degree-. There is no provision in the statute which requires that this be stated nor is there any such in the constitution. The petitioner was well aware moreover of the crime with which he was charged. G. S. 1935, 62-1003 to 62-1010 sets out matters which the information must contain. In Lang v. Amrine, 156 Kan. 382, 133 P. 2d 128, the court said: “ . . . However, we think it not out of place to say that appellant contends the information was fatally defective because it did not give the number of the section -of the statute under which he was prosecuted. This is not required by our statute (G. S. 1935, 62-1010), which outlines the contents of an information . . (p. 383.) Petitioner next argues-that he was denied the right to be properly represented by counsel, the right to material witnesses, the right to a fair and impartial trial. It is difficult to see why petitioner should make such allegations as this. Fortunately we have a stenographic record of what transpired at the time petitioner pleaded guilty. It is clear that before the petitioner's preliminary hearing was had the district judge appointed a reputable and able lawyer to be his counsel. This same lawyer was the counsel from then on until petitioner pleaded guilty and was sentenced. At one point counsel for petitioner himself seemed to think there was a chance the prisoner might be convicted of a lesser offense than murder in the first degree. However, at a subsequent time petitioner asked to be taken before the district court and there stated that he wished to plead guilty to murder in the first degree. From then on we have the benefit of the verbatim transcript of the notes of what transpired. Counsel for the petitioner, the county attorney and the trial court were me ticulously careful to preserve every constitutional right of the petitioner. There is no doubt but that he received fair treatment from the outset and at every step. Petitioner argues that the sheriff and county attorney had evidence in their possession to prove him innocent. He makes a somewhat rambling allegation as to that in his petition. His statements are so general that it is difficult to tell just what he had in mind, but if he were able to prove the actual facts he alleged then it would fall far short of proving any misconduct on the part of the sheriff or county attorney. To the end that full information may be set forth in the journal entry we need not repeat what has been said in the case of Wilson v. Hudspeth, No. 37,356, this day decided. The procedure there outlined is to be followed in this case. The attorney general is directed to complete the journal entry in the manner set forth in that case. When the journal entry is completed as above outlined, the writ will be denied. It is so ordered.	[ 48, -22, -11, -67, 11, -32, 50, -100, 67, -77, -26, 115, -27, 22, 0, 123, 123, 59, 85, 121, -49, -105, 119, -23, -78, -13, 83, -43, -13, 79, -4, -108, 77, -80, 10, -43, 102, -120, -57, -36, -114, -123, -88, -31, -62, 0, 36, 43, 22, 15, 49, 94, -29, 110, 26, -63, 9, 45, 79, -81, -48, -15, -72, 15, -37, 6, -94, -107, -108, -62, 64, 46, -104, 17, 0, -24, 81, -106, -122, 118, 111, -85, 44, 110, 98, 1, -36, -18, 40, -103, 46, 62, -99, -89, -103, 73, 75, -84, -98, -35, 103, 16, 38, -2, -25, 37, 17, 108, -119, -50, -76, -107, 79, 60, -126, -37, -29, 5, 0, 113, -51, -14, 92, 103, 27, -103, -58, -100 ]
The opinion of the court was delivered by Thiele, J.: This appeal involves the validity of the will of John W. Gereke, and of a claim by his widow against his estate. John W. Gereke was a farmer living in Pratt county. He died May 26,1946, survived by his widow Mary E. Gereke, his daughter Vada Langford, and his granddaughter Karen, who is the daughter of Vada. Generally the parties will be referred to hereafter by their Christian names. Under date of April 14, 1945, John executed his last will and testament. In a summary way it may be said he gave all of the furniture, household equipment in their dwelling, as well as his automobile, to his wife Mary. All the rest of his property of every kind and description, real and personal, and none of which was further described, he gave to Mary and The Peoples Bank, Pratt, Kan., in trust. The powers of the trustees are set out at length, but as the same are not involved in this appeal, they need not be detailed, further than to say the trustees were directed to pay the net income from the trust estate to Mary as long as she should live and she was directed to use part of the income for the care and maintenance of Vada and Karen. Upon the death of Mary the income was to be paid in equal shares to Vada and Karen. Upon the death of Vada the trust was to cease as to that share and it was to be conveyed to the then surviving children of his brothers George Gereke and Will Gereke. Upon the death of Karen the trust was to cease' as to that share and it was to be conveyed to the children of her body then surviving, and if there were none, then to the surviving children of his two brothers above named. He appointed his wife and the above named bank as executors. After the death of John, The Peoples Bank filed its petition in the probate court of Pratt county to have his will admitted to probate. To this petition Mary filed her written defenses and objections, alleging that at the time the will was executed John was of unsound mind; that the will was procured through fraud and undue influence; that the alleged will was contrary to law, showed on its face that it was illegal, in conflict with law and unenforceable and void; that the will was invalid and unenforceable for the reason that it was made in violation of an oral agreement between John and Mary made long prior thereto, in which they agreed not to make wills and that their property should descend under the laws of Kansas; that she had carried out the agreement on her part and had not and would not make any will; that John’s will was in violation of the agreement and she demanded that the agreement be enforced against John and his estate. Mary further alleged that John, by his will, endeavored to dispose of property belonging to Mary; that all-of the property, the record title of which stood in his name in truth and in fact belonged to them jointly and she was the owner of an undivided half thereof. A long statement of reasons for the conclusion stated is later mentioned in connection with her claim against the estate. Mary also included in her defenses and objections an allegation that she elected to take under the law of Kansas and not under the will. As the result of a hearing in the probate court on the petition to probate the will and the defenses and objections, that court, on December 14, 1946, ordered the will admitted to probate. From that order Mary appealed to the district court. On January 6, 1947, Mary filed in the probate court her verified petition for allowance of her claim against John’s estate. The gist of this petition is that for many years prior to and at his death, John and Mary were joint owners in and to all real and personal property owned or which stood in the name of either of them, and that John, by his will, attempted to create a trust in property which he did not own. Then follows a long statement of what might be called evidentiary matter, leading to an allegation that, by reason of agreement made without fraudulent intent, John held one-half of the property standing in his name in trust for Mary, and she asked that such a trust be adjudged and enforced. Mary further alleged an agreement between John and her that neither should make a will but would permit all of their property to descend according to the statutes of Kansas, that she has fully performed, and the agreement should be enforced. Mary further alleged that her election to take under the law and John’s failure to know and understand the nature and extent of his estate, which was over seventy-five percent less than he believed, effectually destroyed the manifest intention and purpose of John in executing his alleged will. On the same day the above petition was filed, Mary also filed her verified petition to have her petition for the allowance of her claim certified to the district court for hearing and determination, and on the same day the probate court made an order to that effect. On May 19, 1947, the matters came on for hearing in the district court and over the objection of the proponent of the will, the court consolidated the trials of the appeal and of the certified claim. After a full hearing, the district court found that the will should be admitted to probate and that Mary’s claim should be denied, and it entered judgment accordingly. Mary’s motion for a new trial was denied and she perfected her appeal to this court. The remarks of the trial court in deciding the case were transcribed and are set forth in the abstract. Although further reference thereto will be made later, it may be said the trial court stated the evidence was insufficient for it to find that John Gereke was incompetent; that there was evidence of incompetency almost a year after he made his will, but that the evidence was that he was competent when the will was made; that complaint John didn’t know the objects of his bounty was unfounded; that when John died, two quarters' of land stood in the name of Mary and the remainder in John; that it found no evidence of any agreement that the property standing in the name of either John or Mary should belong to both in equal shares, nor that John held title for Mary; that it could not find ah agreement between John and Mary not to make a will, and if there was any evidence as to such an agreement, it could not find any consideration for such an agreement. In ruling on the motion for a new "trial, the court again repeated its opinion there was no agreement for a trust relation between John and Mary as to lands standing in the name of either. Appellant has filed an exhaustive brief in which, under four general headings, she presents her contentions based on the errors as specified in her abstract. These will be treated, but not in the order presented. She directs our attention to many decisions from this and other courts and to quotations from legal texts and encyclopedias. Much of this cited material is cumulative in character or, in view of our conclusions, not presently important, and specific reference will not be made to each decision and text cited. I Under one heading appellant argues that John’s will should be denied probate and set aside because: (1) John and Mary agreed that neither should make a will. (2) The plan and purpose of the testator has been destroyed. (3) The testator was not mentally competent. These will be treated in inverse order. Appellant recognizes that this court has laid down the rule that the test of competency to make a will is that the testator know and understand what property he has, know about his relatives and others who may be the objects of his bounty and be able to direct and make disposition of his property with understanding and reason, citing Klose v. Collins, 137 Kan. 321, syl. ¶ 3, 20 P. 2d 494. In that case may be found citations of numerous authorities to the same effect. Later decisions adhering to the rule include Bradley v. Hill, 141 Kan. 602, 42 P. 2d 580; Anderson v. Anderson, 147 Kan. 273, 76 P. 2d 825; Kunkle v. Urbansky, 153 Kan. 117, 109 P. 2d 71. At the oral argument, appellant conceded that there was evidence which warranted the court in finding the 'testator competent, but in her brief our attention is directed to evidence from which a contrary conclusion might have' been drawn.' No purpose will be served by detailing any of this evidence, most of’ which pertains to the testator’s mental condition some weeks and months after the will was made. Appellant stresses a claim there was' no evidence that the testator read his will nor that any person read it to him, which contention, under all of the evidence, we do not believe can be sustained. The will was dictated in John’s presence and there is no claim it was not properly reduced to writing — the evidence is that it was. With characteristic industry, appellant has found- and directs our attention to In re Nolan’s Estate, 25 Cal. App. (2d) 738, 78 P. 2d 456, holding that nephews, nieces and collateral heirs aré hot, because of such relationship alone, natural or normal objects of bounty, and argues that John’s- ultimate gift to his nephews and nieces shows that he did not know the objects of his bounty. Had'John ignored his wife, his daughter and his granddaughter, the argument would be very persuasive — under the circumstances it is entitled to little or ho weight. There is also some argument that John did not know the effect of the will on the 'fights of 'his wife. This argument seems to be predicated in part'on-the assumption that Mary had successfully upheld her contention that half of the property was held in trust for her, and that John did not take that into account in making his will. As has been noted, the will was dictated in John’s presence, after consultation with his attorney, and after being ’ reducéd to Writing was executed in the manner provided -by statute. Although necessarily stated at some length the will is simple in its provisions. There is no evidence from which it may be inferred that John did not know fully the disposition made of his property by his will. In many of our decisions dealing with wills and the competency of the testator, it has been held that we are concerned only'with evidence which supports or tends to support the findings of the trier of the facts. (See, e. g., In re Estate of Walker, 160 Kan. 461, 163 P. 2d 359, and cases cited.) We have examined the evidence with that rule in mind and conclude that, the trial court’s finding that testator had testamentary capacity must be sustained. ' Appellant’s contention that the plan and purpose of the testator as outlined, in his will has been destroyed will be discussed at a later place herein. Appellant, in' connection with her contention that John and Mary had agreed not to make a will, directs our attention to the testimony of one disinterested witness that John told him that he and Mary had agreed not to make wills, to that of another witness that he said he was not going to make 'a will, and to that of Mary that John said he could see no reason for a will “so we agreed there would be no will” and that she had made no will. The daughter Vada testified that “mother, father and I” talked it over that we would never make a will. In support'd a contention such an agreement, if proved, is enforceable, appellant directs our attention to Braden v. Neal, 132 Kan. 387, 295 Pac. 678, where the court considered a demurrer to a .pleading. There it appears that a husband and wife who had ,no children made an agreement that while both lived neither would make a will and that the survivor would then make a will dividing the property among the collateral heirs of each. The husband died without leaving a will. The widow made a will which violated the contract and the action was to enforce the contract. It may be observed an executed contract not to make a will was under consideration there. Appellant directs attention to Gibbs v. Central Surety & Ins. Corp., 163 Kan. 252, 181 P. 2d 498, dealing with uncontradicted testimony; and argues that because no witness denied the testimony concerning the agreement not to make a will, that the agreement must stand and must be enforced. Under the circumstances the court' had the duty to consider the source of the testimony, the interest of the witnesses in the outcome and also what was done. It could take into account that John had said to one witness that he had agreed not to make a will, to another that he was not going to make a will; not that he had agreed not to, the interest of Mary and Vada, the .fact that no one fixed any time such a purported agreement was made, the testimony that John did make a will when his health began to fail and he wanted to make an arrangement of his affairs so that his family would be protected. In such a situation the court stated it could not find there was an agreement between John and Mary. We are hardly warranted in reviewing this same evidence and surrounding circumstances and making a contrary finding. The matter is not to be determined under Braden v. Neal, supra. It may also be observed that Mary, the only adverse party, and who would have inherited only one-half of his estate had he died intestate, having elected to take under the law, is not concerned with whether John did or did not make a will, for in such case she has no concern with the portion which she does not take. (G. S. 1947 Supp. 59-603.) The contention the court erred in respect to any agreement not to make a will is not sustained. II In her brief, appellant first contends that Mary and John were each the owner of an undivided one-half of all property, regardless of the one in whose name the legal title was taken, a contention later discussed, and she then contends that having filed a verified demand, which she supported by evidence, and to which demand no written objections or denials were filed and no disputing evidence offered, her claim should have been allowed. Her argument, however, turns principally on the proposition no written objections or defenses were filed in opposition to her claim, and a lengthy argument follows concerning the necessity of filing written defenses, and the necessity of denying under oath a verified claim. Appellees object to any consideration of the contention for the reason the question was never raised in the trial court. The record as abstracted does not disclose the question was ever raised in the trial court or ruled on by it. Under such circumstances it ought not- be considered here. (Herd v. Chambers, 155 Kan. 55, syl. ¶ 3, 122 P. 2d 734.) We do note, however, that on the day the claim was filed, on claimant’s petition it was certified to the district court for trial. Even if the executor had notice, he had no opportunity to file a defense. The question not being raised in the district court, the executor did not ask for permission to file any defenses, as he had a right to do (G. S. 1947 Supp. 59-2408). The matter, having been certified, was tried as though originally filed in the district court (G. S. 1947 Supp. 59-2402). In that court, as will be shown later, a considerable amount of testimony was adduced by the claimant, an utterly useless proceeding if she was entitled to judgment on the pleadings, and the matter proceeded to final judgment without any question being raised in the trial court that the executor was in default of a written defense or had failed to deny any allegations under oath. Appellant’s claim comes too late and error cannot be predicated upon it. (See Collis v. Kraft, 118 Kan. 531, syl. ¶ 1, 235 Pac. 862, and Koury v. Rapalino, 124 Kan. 582, syl. ¶ 2, 261 Pac. 578.) III Appellant’s principal contention is that the undisputed evidence disclosed that John and Mary were each the owner of an undivided one-half of all their property regardless of whether title was taken in the name of one or the other and that the trial court erred in not so finding. Her argument later noted is that they were partners, but if not, that John held title in trust for her. In an explanatory way it may be said that the major portion of her brief is devoted to this contention where she cites many authorities and makes extensive reference to the abstract which contains a great deal ,of oral testimony and many exhibits all having some connection, immediate or remote, with her claim. The abstract does not disclose just what real and personal property belonged to John’s estate at his death. It does disclose that at his death John had title to over 2,000 acres of land and that Mary had title to 320 acres which included the homestead, and that all of the land was free of encumbrance. For our purposes, a summary of the evidence discloses that John and Mary, whose ages are not shown in the abstracted record, were married in 1910. They had two children, a son who died in infancy, and a daughter, Vada, who is a beneficiary under John’s will. At the time of their marriage Mary had no property and John had a contract for a quarter section of land. The terms or conditions of this contract are not disclosed. John farmed and Mary performed those acts usually done by a farmer’s wife in cooking, washing and sewing for the family, raising chickens, milking cows, and selling produce therefrom. On occasions she worked in the cook shack with the harvesting outfit. There was no joint bank account —it was in John’s name. Nothing is shown as to intervening years concerning the acquisition of property, nor is any land particularly identified, but under date of September 9, 1918, while Mary was in California with her mother, John wrote her a letter, the portion relied on reading as follows: “Paid all off on our land, but one quarter, and it can’t be paid until June. So you see we are going over the top some of these days, and you, dear little woman, must have all the praise in my way of looking at it, for you loved me and stayed by me when everybody else turned me down.” One witness testified that in 1912 he heard John say, “Mary and I, we bought — we figured on buying something”; another testified she heard John say, “I and Mary have worked awful hard for what we have”; another said that in 1941 he heard John say that he and Mary were fifty-fifty; and another stated that John told him that Mary owned half of the property and would own three-fourths of it when he died. Mary and Vada each testified to similar statements. In the early thirties John lost all of his property, which was then quite extensive, as the result of foreclosure of mortgages, but within a few years he commenced to recover financially. He succeeded in redeeming a half section of land and took title in Mary’s name and she had it at John’s death. He also succeeded in making further redemptions and purchases, partly in his own name and partly in the name of one Nelson from whom he had financial assistance. Without noticing intervening matters, he had trouble with Nelson which was finally determined by a contract in which Nelson and his wife were referred to as sellers and John and his wife Mary were referred to as buyers, and under which John was to obtain title in his name to the lands now in controversy. Under the contract he was to pay Nelson over $75,000 and to raise the money he sold a residence in Wichita, the title to which was in Mary, for $5,000, mortgaged his cattle for $11,000, and borrowed $60,000 on a note signed by himself and Mary which was secured by a mortgage on the real estate he was receiving from Nelson as well as on the half section standing in Mary’s name and referred to above. This transaction was- completed in the spring of 1943. Between that time and May, 1945, John had considerable income and by using it and the proceeds of a tract of land he sold, he was able to pay off the mortgage indebtedness. There was also evidence of acquisition of lands prior to 1930 when John and Mary executed notes and mortgages. Although not shown definitely, the record indicates that John bought some United States bonds of undisclosed amounts payable to himself and/or to Mary. A series of United States and Kansas state income tax returns was received in evidence. Some returns were John’s individually, some Mary’s, and some were joint returns. In the individual returns John claimed deduction for taxes paid, but the returns as abstracted do not show on what property the taxes were levied. In Mary’s individual tax returns no deduction is claimed for taxes and the only income returned was from wheat speculation. We are told that the speculation was John’s and not Mary’s operation. Appellant first argues that the evidence discloses that she and John were partners and that as a partner she is the owner of one- half of all the land and other assets of the partnership, and second, that in any event John held title to one-half in trust for her. Appellees in their brief state that the matter of partnership was not presented to or contended for in the trial court and that such a contention is raised for the first time in this court. Previously we have noted the allegations of appellant’s claim, as filed in the probate court, which refer only to a claim of resulting trust and not to any claim of partnership. We have also noticed the remarks of the trial court in deciding the case, and no reference is made there to any claim of partnership. In no matter has appellant challenged appellees’ statement that the matter of partnership was not presented to or contended for in the trial court. The matter of partnership not being in issue under the pleadings, a subject of controversy at the trial, nor ruled upon by the trial court, is not properly before us and we shall not consider that portion of the appellant’s abstract and brief. (See Herd v. Chambers, supra; Gantz v. Bondurant, 159 Kan. 389, 393, 155 P. 2d 450; Claggett v. Claggett, 159 Kan. 535, 538, 156 P. 2d 534; and other cases noted in West’s Kansas Digest, App. & E., § 169, and Hatcher’s Kansas Digest, App. & E., § 304.) Appellant contends further, however, that, assuming there was no partnership between John and Mary, the transaction with Nelson, whereby John obtained title to the real estate standing in his name at his death, gave Mary an interest in the land and that John held a one-half interest therein in trust for her. We have heretofore reviewed the terms of the Nelson contract and the manner in which it was performed. Her argument on this phase is long and must be summarized. Its gist is that an agreement whereby one holds title to land for another need not be established by direct evidence (Scholz v. Hoth, 94 Kan. 205, 146 Pac. 339; Starbuck v. Kingore, 112 Kan. 102, 210 Pac. 930); that an agreement creating a trust may be oral and proved by the admissions of the deceased the acts of the parties and all the circumstances in connection with the transaction (Piper v. Piper, 78 Kan. 82, 95 Pac. 1051; Stevens v. Hicks, 84 Kan. 351, 353, 113 Pac. 1049); that the interest of Mary was not limited to the amount of actual cash she may have advanced, but extended to the obligation which she assumed as a part of the purchase price (McClellan v. Beatty, 115 Ind. App. 173, 53 N. E. 2d 1013, 1016; Moat v. Moat, 301 Mass. 469, 17 N. E. 2d 710; Patrick v. McGaha, [Texas Civ. App.] 164 S. W. 2d 236, 241; as well as Kull v. Pearl, 147 Kan. 329, 76 P. 2d 790, to which reference is later made); that Mary, having signed the note and mortgage, her ownership was equal with John regardless of who paid most of the note (Anderson v. Anderson, 137 Kan. 833, 835, 22 P. 2d 471; and Nat’l Bank v. D. W. Stanrod & Co., 47 Idaho 93, 272 Pac. 700, 702); that the law implies a trust in favor of Mary by reason of her agreement and her payment in part of the consideration (Franklin v. Colley, 10 Kan. 260); that such a trust arises by implication of law because morality, justice and fair dealing demand that the relation be established (People’s Pittsburgh Tr. Co., Applnt. v. Saupp, 320 Pa. 138, 143, 182 A. 376, 378, 103 A. L. R. 844) and to prevent unjust enrichment (Titus v. Titus, 151 Kan. 824, 101 P. 2d 872), and on both phases of the last proposition our attention is also directed to Vol. 3, Scott on Trusts, pp. 2242, 2243, and 2317; that there is a confidential relation between a husband and wife (Gemmel v. Fletcher, 76 Kan. 577, 587, 92 Pac. 713; Warner v. Broquet, 54 Kan. 649, 39 Pac. 228) and is one of the elements to be considered in determining whether a trust relation existed with respect to the land (Kull v. Pearl, supra). Under the rules as stated, it is contended the evidence compelled a conclusion a trust relation existed and our attention is directed to the evidence as to what John had told various persons about the ownership of the property, the payment of taxes, the income tax returns, and other evidence. In her brief the summarized statements are dwelt upon at length as are some subdivisions thereunder and decisions other than those noted are cited. Contending that the evidence is undisputed, appellant directs our especial attention to Reemsnyder v. Reemsnyder, 75 Kan. 565, 89 Pac. 1014, as being amply sufficient to support a judgment in her favor. In that case the court considered a demurrer to plaintiff’s evidence and held the trial court erred in sustaining it. Reference is made to the long and somewhat involved statement of facts held sufficient to prove a right to relief. The principal point in that case was whether the evidence disclosed a fraudulent conveyance. The court, however, took notice that the rule that a trust in land could be created only by writing did not apply where, by agreement, and without fraudulent intent, the person to whom a conveyance is made is to hold the land or an interest therein in trust for the person who pays the purchase price or a part of it, citing Rayl v. Rayl, 58 Kan. 585, 50 Pac. 501, which it may be said supports the rule stated. Appellant also stresses Starbuck v. Kingore, supra, in which the court considered ownership of a decedent’s lands as between his wife and adopted daughter. Reference is made to the opinion where the facts and findings of the trial court were affirmed, it being held the evidence sustained the judgment that without fraudulent intent certain lands acquired in the name of the husband had been purchased with the wife’s money and that she was the equitable owner thereof and that such lands were not affected by his will. Our decision in Kull v. Pearl, supra, is referred to by appellant and appellees. Limits of space do not permit a résumé of all the facts of that case but there the claim was that land standing in the name of her husband was in fact held by him in trust for Emily Campbell. The trial court, on the basis of the evidence, held that it had been made to appear that by agreement and without fraudulent intent the husband, to whom the conveyance was made, was to hold the land in trust for his wife, who paid the consideration therefor. There the evidence disclosed, among other things, that when the conveyance was made the husband had no funds but his wife did, to make a payment of $9,000 on a consideration of $17,000, the balance being procured on a note and mortgage executed by both. Later she paid the mortgage. In that case it was recognized that whether there was an agreement to hold in trust and its terms, might be inferred from the relation of the parties, their financial means, their conduct and admissions and other circumstantial evidence, but it was held that the test of sufficiency of the proof was that it must be clear and satisfactory to the trial court. Reference is made to other opinions cited in that case in support of the holding. This court affirmed the judgment of the trial court that the husband held title in trust for his wife. Anderson v. Anderson, 137 Kan. 833, 22 P. 2d 471, was an action for possession of land, for an accounting and for partition, and as an incident to set aside a certain deed made to two brothers. The case is of interest on presumptions of equal ownership and the effect of unequal contributions to the purchase price, and means which might be adopted to preserve shares proportionate to contributions. In that case it was held that the legal effect of such a conveyance (equal ownership) prevails unless the grantees enter into an agreement in writing that they hold in unequal proportions, or enter into an agreement sanctioned by the statute of trusts (R. S. 67-401 et seq.). An opinion denying a rehearing is reported in 138 Kan. 77, 23 P. 2d 474, where in discussing the statute of trusts it was said that the agreement therein mentioned (R. S. 67-408) must be made when the title is taken, and that when an effective conveyance is made to A and B and their heirs, an unwritten agreement made at the time of the conveyance, without intent to defraud, that the grantees should take title in proportion to their contribution to the purchase price, did not create a trust sanctioned by the statute of trusts. The case is especially of interest here on the timé an agreement must be made to be of effect-under the statute of trusts. In the earlier case of Clester v. Clester, 90 Kan. 638, 135 Pac. 996, L. R. A. 1915E 648, an effort was made to have a trust declared. In that opinion it was said: “The weakness in appellants’ claim is the absence of ’ any testimony to show an agreement at the time the conveyances were made by which Ida M. Clester was to hold the land in trust for the husband. Had there been testimony that such was the agreement, the case might be said to fall within the provisions of section 8 of the act relating to trusts and powers (Gen. Stat. 1909, § 9701), and even though the agreement had been oral it would lie within the province of equity to raise a trust to prevent a failure of justice (Rayl v. Rayl, 58 Kan. 585, 589, 50 Pac. 501, and cases cited in the opinion). But there was no testimony showing any promise or agreement or understanding at the time the conveyances were made that she should hold in trust for him.” (1. c. 640.) In Pricer v. Simonton, 134 Kan. 211, 5 P. 2d 835, the issue arose on a judgment on the pleadings. Reference to the opinion is made for the facts. The rule in Clester v. Clester, supra, was adhered to. In re Estate of Crawford, 155 Kan. 388, 125 P. 2d 354, this court considered rulings on pleadings in an action wherein a wife sought to establish claims against her deceased husband’s estate, claiming a trust by implication in her favor. Although the case is clearly distinguishable from the one now before us, we note the following: “Appellant’s second argument is that the claims are not barred because a trust relationship existed, as alleged in the petition. In the first place, no facts were alleged which would create a trust. The bare allegation of the petition that a trust was created is a mere conclusion of law and was rightly stricken from the petition. No express trust, was alleged; no allegation that there was any understanding or agreement between appellant and her husband that he would hold the property or the money received in trust for her. The mere fact that she turned over property to her husband or paid bills for him was not in itself sufficient to create a trust by implication of law. (Clester v. Clester, 90 Kan. 638, 135 Pac. 996; Pricer v. Simonton, 134 Kan. 211, 5 P. 2d 835; Fooshee v. Kasenberg, 152 Kan. 100, 102 P. 2d 995.)” (l. c. 392.) A recent case in which this court has considered a somewhat similar situation is Gantz v. Bondurant, 159 Kan. 389, 155 P. 2d 450. As originally commenced a father sought to establish a resulting trust in 400 acres of land, the title to which stood in the name of his son, who was then deceased, the father contending that a resulting trust was created by reason of the fact the father had paid the consideration for the purchase of land, under an oral agreement with the son made without fraudulent intent, that the title was to be taken in the name of the son who was 'to hold in trust for his father.'' An advisory jury found against the plaintiff’s claim, the trial court approved its finding, and rendered judgment in favor of the defendant. In our opinion may be found an analysis of our statute of trusts, and comment, all the basis of our holding in paragraph one of the syllabus, which reads as follows: “The provisions of G. S. 1935, 67-401, 67-406, and 67-408 construed, and held, no trust concerning lands arises by implication of law in favor of one who pays the consideration for a conveyance made to another in the absence of an agreement, without fraudulent intent, that the party to whom the conveyance is made shall hold the land or some interest therein in trust for the party paying the purchase price or some part thereof.” Attention is also directed to In re Estate of Langdon, this day decided {post, p. 267) in which the surviving husband claimed that he was the owner of one-half of certain stocks and bonds "standing in the name of his deceased wife by reason, of an understanding and agreement between them to that effect and under which he contributed to the purchase price. The testimony in support of the claim is set forth at length in that opinion. The trial court rendered judgment for the claimant. Answering the appellant’s contentions, we said that it was true no express written agreement was shown but that was unnecessary; that such an agreement could be inferred from the conduct and actions of the parties, the relationship between them and the circumstances of the case, and such being established, that a trust in the husband’s favor would be implied. The judgment was affirmed. We shall not extend this opinion by reviewing other of our many decisions, for those reviewed or mentioned therein fairly cover the field. For present purposes, it may be said that our statute relating to trusts and powers (G. S. 1935, ch. 67, art. 4) provides that no trust concerning lands shall be created except such as may arise by implication of law, unless in writing by the party creating the same (67-401); that when a conveyance for a valuable consideration is made to one person and the consideration paid by another, no trust shall result in favor of the other (67-406) unless it shall be made to appear that “by agreement and without fraudulent intent the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land or some interest therein in trust for the party paying the purchase money or some part thereof.” (67-408.) Did the evidence disclose facts from which the trial court was compelled to reach the conclusion that a trust resulted under the above statutes or under the law? In discussing the question we shall ignore any question of fraudulent intent for it is not contended there was any. In deciding the cause, the trial court remarked that it could not see anything more in the case than just the natural ordinary husband and wife relationship that exists in probably ninety-five percent of the farm homes in the country, and that for the court to hold that Mary now owned three-fourths of the property would seem to mean that every farm wife in Pratt county could make the same contention and the whole theory of husband and wife relation and ownership of property would be upset, that the way it was (in view of her election) Mary would get half and John would get half and she could do as she pleased with her half. After referring to the sum of $5,000 (evidently proceeds of the sale of the Wichita property) the court said that under some decisions there might be a trust to that extent but there was no agreement between John and Mary respecting a trust proposition as to the $5,000, and that there was no understanding between them when that property was sold and put into the Nelson land purchase. It is clear enough that the evidence discloses no specific agreement between John and Mary that if she would let him use the $5,000 and would let her half section be included in the mortgage, that John would hold half of the lands he was acquiring from Nelson in trust for her. Under many of the decisions noted it is recognized that such an agreement may be proved by circumstances. Each case of this kind varies from others and to a certain extent each case above noticed was determined in view of the evidence adduced. It is true here that the evidence concerning the relationship between John and Mary and the manner and means in which the Nelson transaction was carried out was undisputed but that does not mean that only one set of inferences may be drawn therefrom. For instance, appellant lays weight on the fact that she was a party to the contract whereby John got title from Nelson, and argues that because she> was bound by the contract, anything that John got was for her benefit. She ignores the fact that if she was to get a benefit, the contract could easily have so provided and not having done so it may be inferred there was no agreement to that effect. Where two inferences are possible, a trial court does not err simply because it makes one unfavorable to a complaining party. The trial court may also have felt that such an agreement was not consistent with the previous acts of John in handling his affairs or in permitting title to the Wichita property and to the half section in Pratt county to be vested in Mary, for one inference would be that if Mary was to be the owner, both John and Mary knew how to make it clear and that she was and did not do so. Under decisions above noted the mere fact that Mary may have contributed to the consideration of the lands acquired from Nelson did not of itself prove a trust — it was only an element to be proved. Proof of agreement made at the time to hold in trust was essential. Under the decisions the proof must be clear and satisfactory to the trial court, not to an appellate court. Here the trial court found the proof was not clear and satisfactory and that there was no agreement for a trust. We are not at liberty to substitute our judgment for that of the trial court. IV We now consider appellant’s contention that the plan and purpose of the testator as outlined in his will has been destroyed. This contention seems to be based primarily on an assumption that John owned only one-half of the real estate standing in his name, and on an assumption his wife would elect to take under the will and not under the law, and that neither being the case, the will failed. The contention cannot be sustained. The first assumption is not warranted and the second does not have the effect of setting aside the will. Mary’s election to take under the law and not under the will may affect the amount of property upon which the will may operate, but we can discern no other effect. See Pittman v. Pittman, 81 Kan. 643, 107 Pac. 235, 27 L. R. A., n. s., 602; Allen v. Patee, 104 Kan. 440, 179 Pac. 333; and Tomb v. Bardo, 153 Kan. 766, 114 P. 2d 320. The matter of Mary’s being a beneficiary under the trust is now of no consequence. Her renunciation caused the gift to her to fail at its inception. (Kimberlin v. Hicks, 150 Kan. 449, 453, 94 P. 2d 335; Ward v. Ward, 153 Kan. 222, 109 P. 2d 68; and Tomb v. Bardo, supra.) V We notice briefly appellant’s complaint that the trial court erroneously refused to admit evidence. Mary Gereke was asked whether she knew any of John’s brothers and whether they helped to accumulate the property. An objection was sustained. The record does not disclose that evidence as to what her answer would have been was offered on the hearing of a motion for a new trial, and the argument the ruling was erroneous will not be considered. Mary was also asked about a purchase of an investment in the name of John as trustee for her, and she then offered the bond in evidence and an objection was sustained. At most, the evidence was cumulative. If there was error, it has not been made to appear that it was prejudicial. Roy Moore was a witness for appellees and testified concerning a conversation he had with John Gereke concerning his will. On cross-examination he was asked about a written statement he had given an attorney, who was evidently acting in the interest of appellant. He admitted the signing and the matter was fully inquired into. Later the attorney was placed on the stand, gave his version, and the statement was then offered and refused. The record discloses the trial court heard the whole matter, and if it was error to refuse to admit the statement it was a harmless error. The other claim is that the trial court erred in sustaining objections sustained to questions asked Mary as to whether John at a particular date said anything to her about making a will, or indicated he was going to have a will made. Possibly a negative answer would not have violated the statutory rule as to conversations with persons since deceased (G. S. 1935, 60-2804) and the objection was premature, but that the ruling affected the outcome of the action has not been made to appear. VI Our examination of the entire record, and our consideration of appellant’s contentions leads to a conclusion that the trial court’s judgment should be and it is affirmed. Cowan, J., not participating.	[ -44, 72, -4, 28, 40, -32, 42, -118, 115, -76, 39, 83, -17, -102, 21, 127, 114, 15, -47, 123, -29, -77, 31, -95, -110, 115, -39, -35, -80, 74, -76, -33, 76, 96, 42, -107, 98, -62, -61, 28, -116, 64, 11, -4, 89, 64, 52, 39, 118, 10, -43, 14, 51, 43, 29, 99, 108, 46, 107, 60, 120, -80, -118, 7, 93, 23, 17, 6, -100, -125, 72, 42, -112, 21, 0, -24, 83, 54, -122, -12, 43, 75, 40, 102, 98, 18, 13, -17, -112, -120, -114, 26, 29, -89, -106, 88, -32, 41, -66, -100, 113, -80, 14, -4, -18, -99, 28, 104, -116, -114, -106, -79, -119, 60, -100, -117, -21, -122, 32, 113, -55, -126, 93, 71, 49, -101, -122, -80 ]
The opinion of the court was delivered by Wedell, J.: Two actions were instituted in the district court of Grant county to vacate and set aside as void two sheriff’s deeds issued in a tax foreclosure action brought by the board of county commissioners of Grant county. One purchaser of a mineral interest was a member of the same board of county commissioners that instituted the foreclosure action. The purchaser of the other mineral interest was an attorney employed by the board to assist the county attorney in the tax foreclosure action. Service in that action was by publication. The defendants in the instant action are the board of county commissioners, W. P. Wesley (county attorney of Grant county) and the two purchasers at the sheriff’s sale. The plaintiff is Shell Oil Company, a corporation, formerly Shell Petroleum Corporation, a foreign corporation, authorized to do business in Kansas, with its principal place of business in this state and its postoffice address in the Central Building, Wichita, Kan. The defendants jointly filed a general demurrer to plaintiff’s verified amended petition. Defendants appeal from the order overruling their demurrer. The only material factual difference in the two present actions is the mineral interest involved and the purchasers thereof. The appeals in cases No. 37,262 and No. 37,263 have been consolidated. The journal entry of judgment, the order of sale and the confirmation of the sheriff’s sale in the tax foreclosure action were attached to and made a part of each petition in the instant cases. The petitions are quite lengthy. In our view of the case it is unnecessary to set forth the petitions in full. We shall continue to refer to the parties as plaintiff and defendants except where necessary to distinguish between the Shell Oil Company and the Shell Petroleum Corporation. In that event we shall refer to the corporation as the oil company or as the petroleum' corporation. Some of the salient facts alleged in the verified amended petition in case No. 37,262, in substance, were: The petroleum corporation was a defendant in the tax foreclosure action; the journal entry of judgment in that action disclosed the owner and party claiming the mineral interest involved was the petroleum corporation; the oil company, formerly the petroleum corporation, a foreign corporation, was authorized to do business in this state; at all times during its existence in this state petitioner had a service agent appointed in this state, as required by law, upon whom personal service could be had and service could likewise have been had on the secretary of state; the tax foreclosure action was filed on March 19, 1942; the oil company, formerly the petroleum corporation, ón that date and for many years prior thereto had been the owner of the undivided mineral interest involved; there were no delinquent taxes on that mineral interest on March 19, 1942; the petitioner had at all times paid the taxes in full; the records of the county treasurer of Grant county disclosed there were no delinquent taxes on "said land” on March 19, 1942; notwithstanding defendants’ knowledge that no tax lien existed against "said land” the defendants, W. P. Wesley, county attorney, and H. W. Stubbs, as agents and attorneys for the defendant board of county commissioners, instituted the action seeking to foreclose alleged tax liens; the mineral interest and many other properties were sold on July 26 and 28 and the sales were confirmed August 5, 1942; the alleged unpaid tax on the mineral interest was $3.57; the costs were $4; the market value of the mineral interest on March 19, 1942, was $6,000; the mineral interest was purchased at sheriff’s sale for the grossly inadequate and unconscionable sum of $20 by H. W. Stubbs; the county attorney and H. W. Stubbs, as agents and attorneys for the board of county commissioners,-instituted the tax foreclosure action for Grant county; in that action the county attorney and H. W. Stubbs acted as governmental agents and representatives of the taxpayers and the general public; although petitioner had a resident agent in this state, as required by law, upon whom- personal service might have been had and although personal service likewise might have been had on the secretary of state service was nevertheless obtained by publication only; the publication service was approved by the district court by reason of an affidavit filed by the county attorney in which it was knowingly and falsely stated that personal service could not be had on the petitioner in the instant case in this state; that defendants conspired to fraudulently deprive petitioner of its title to the mineral interest involved; the petitioner had no actual notice of the foreclosure action and the fraud of defendants until April 1, 1944; until that date this petitioner had relied on its record title, returned the same for taxes each and every year and had paid all taxes assessed against it; had this petitioner had notice of the foreclosure action it could, and would, have shown the court it was the lawful owner of said land free and clear of any alleged tax liens. It is conceded the allegations in case No. 37,263 were substantially the same except the petition in that case, in substance, further stated: The alleged unpaid tax on that mineral interest was $3.27; the mineral interest was purchased at sheriff’s sale by C. L. Dew, a member of the board of county commissioners for the inadequate and unconscionable sum of $10; the market value of “said land” on March 19,1942, was $6,000. It is conceded the mineral interest in each of these cases is an interest in real estate and that where the petitions refer to it as “said lands” the property so designated is the mineral interest involved. The tax foreclosure action was governed by chapter 375, Laws 1941, and all references will be made to it or to sections thereof contained in G. S. 1941 Supplement to the General Statutes of 1935. Plaintiff, in substance, framed the petitions to vacate and set aside the tax foreclosure judgment and sales on the following theories, to wit: (1) The tax foreclosure act, chapter 375, Laws 1941, under which the mineral interests were sold, does not relate to the sale of real estate on which the taxes are fully paid but only to the sale of real estate on which the taxes are “due and unpaid”; the judgment and sheriff’s deeds issued in the foreclosure action are void for the reason the court acquired no jurisdiction of the subject matter; (2) the purchasers at the sheriff’s sale, one a member of the board of county commissioners and the other an attorney appointed by that board to assist the county attorney in the foreclosure action, were representatives of the public and in such fiduciary capacity were- disqualified purchasers and obtained no title as against this plaintiff; (3) jurisdiction over this plaintiff, if any, was acquired by means of fraud on the district court and this plaintiff and by reason of such fraud the judgment was void; and (4) service by publication was unauthorized as a matter of law and the judgment was void. We have not attempted to set forth all allegations of the petitions designed to state a cause of action on each theory. Is the first the ory sound? In Magnolia Petroleum Co. v. Moyle, 162 Kan. 133, 175 P. 2d 133, we held: “A tax foreclosure action brought under G. S. 1941 Supp., 79-2801, is a proceeding in rem, and jurisdiction of the res is essential to the validity of any judgment in such an action. “Conditions, precedent to the maintenance of a tax foreclosure action are that taxes lawfully assessed against real estate shall have been unpaid and the real estate involved must have been sold and bid in by the county at a delinquent tax sale, and unless those conditions exist the district court has no jurisdiction of the real estate, and any judgment ordering its sale is void. “Where an interest in any minerals in any real estate is conveyed as provided in G. S. 1935, 79^420, and the deed is duly recorded or the interest listed for taxation as therein required, and thereafter the mineral interest is separately taxed and the taxes are fully paid, the mineral interest is not subject to sale in any tax foreclosure action. . . .” (Syl. ¶¶ 3, 4, 5.) Defendants argue these actions, not having been commenced within six months from the date the sales were confirmed, are barred by G. S. 1941 Supp. 79-2804b irrespective of whether the six-month provision allowed for bringing these actions is properly regarded as a statute of limitations or as a condition precedent to the right to maintain them. In the final analysis the force of this contention depends on whether the tax foreclosure act, chapter 375, Laws 1941, of which the six-month statute is a part, relates to the subject of the sale of real estate on which the taxes are fully paid. A careful reconsideration of our former decision in the Magnolia case, swpra, and of all parts of the 1941 tax foreclosure law convinces us the legislature did not have the remotest intention of legislating on the subject of granting to county officials or to district courts jurisdiction to divest a citizen of his title to real estate on which the taxes were fully paid. That manifestly would be the logical and proper conclusion to; reach even though some ambiguity concerning the question might exist in the act. No such ambiguity can be found in it. On the contrary section 1 of the act (G. S. 1941 Supp. 79-2301) clearly discloses the act applies only to real estate on which the taxes are delinquent. It reads : “All real estate on which the taxes shall not have been paid . . . shall be subject to sale as hereinafter provided.” G. S. 1941 Supp. 79-2801, which pertains to tax foreclosure actions, reads: “That in all cases in which real estate has been or shall be sold and bid in by the county at any delinquent tax sale. . . .” G. S. 1941 Supp. 79-2315 expressly requires “the taxes for which it [the real estate] is sold must be due and unpaid at the time of such sale.” The entire act relates only to the collection of delinquent taxes and refers only to real estate on which taxes are due and unpaid. It is not our purpose to again review at length the various cases cited in the Magnolia case, swpra, or others which might be considered. We believe, however, brief additional comment concerning a few of them may be helpful. In Doty v. Bassett, 44 Kan. 754, 26 Pac. 51, a tax foreclosure statute, similar to the instant one on the precise point now under consideration, was involved. The court interpreted the statute to determine to what subject it related and to what real estate it referred in order to decide whether the court had jurisdiction of the subject matter in the tax foreclosure action. The statute was chapter 39, Laws 1877, the opening sentence of which read: “That in. all cases in which real estate has been or shall be sold and bid in by any city or county at any delinquent tax sale, and shall remain or shall have remained unredeemed and the certificate of sale untransferred for the period of three years after such sale, it shall be the duty of the attorney of such city or county to file a petition. . . (Our italics.) To what subject did the court say that act related? It held it was an act “relating to the collection of delinquent taxes.” To what real estate did it say the act referréd? It held it referred to real estate on which “taxes are due and unpaid.” Having so interpreted the statute the court applied it, the law, to the property in question, and held: “Chapter 39, Laws of 1877, relating to the collection of delinquent taxes on real estate bid off by counties and cities at tax sales, is to be understood as referring to real estate where ‘taxes are due and unpaid,’ and not as including real estate belonging to the United States, and therefore not liable to taxation.” (Syl.) In conformity therewith the court concluded its opinion by saying: “Here there was no delinquent tax. The district court therefore had no jurisdiction.” (p. 757.) (Our italics.) To argue that decision is based on the ground property of the United States was involved is to reason backward. Such argument ignores the interpretation of the statute, the foundation of the decision. The court’s lack of jurisdiction, as stated, was due to the fact that there was no delinquent tax. The essence of the decision, therefore, is not the reason why no delinquent tax existed but the fact that none existed. It is quite natural that there has been little occasion to cite the decision in the Doty case. Fortunately, it is seldom that a sovereign endeavors to divest a citizen of his title to property on which he has fully paid the taxes. Errors may occur in the preparation of lengthy tax foreclosure actions. That is quite understandable. When, however, the sovereign’s own error is discovered none should be so prompt to rectify it as the sovereign. Ordinarily that is done with the result that such errors seldom reach the courts. It is well established that the fundamental prerequisite to a valid sale of real property for taxes is that there is a tax due and unpaid at the time of sale. That such tax is due and unpaid “is either specifically or necessarily by implication embodied in every provision for the sale of real property for taxes.” (Our italics.) That a tax must be due and unpaid has been declared to- be a “prerequisite essential to fair dealing between a sovereign and its citizens.” (Montgomery County v. Wilmot, 114 Kan. 819, 824, 221 Pac. 276.) And that is doubly true where the records of the county treasurer show the taxes are fully paid. It has been well said that where a “sovereign had no charge or claim against the property for taxes” the sovereign had “. . . nothing to sell. . .” and that although it went through the form of a sale it “. . . sold nothing and hence conveyed nothing.” (Montgomery County v. Wilmot, supra, p. 824.) Manifestly where a purchaser at sheriff’s sale received nothing the true owner is not by such sale divested of his title. It is said the district court in the instant tax foreclosure action was required to determine the amount, of taxes, charges, penalties and interest chargeable to each tract of land or piece of real estate (G. S. 1941 Supp. 79-2802) and that it did so. To be sure the court was granted the power and it had the duty to determine the amount of taxes due on lands when the taxes thereon were delinquent. But to say the court therefore was granted jurisdiction over the sale of lands not subject to sale at all and entirely outside the purview of the act is to confuse exercise of power with lack of jurisdiction. Defendants emphasize the fact that the journal entry in the tax foreclosure case disclosed the property was sold as property owned •and claimed by the petroleum corporation. It is true that where land is sold for taxes the law provides it need not be sold as the property of any person or persons and that no sale of the real estate shall be considered invalid on account of its having been charged on the tax roll in any other name than that of the rightful owner. (G. S. 1941 Supp. 79-2315.) The difficulty with defendants’ contention, however, is that irrespective of who the owner might be the same statute nevertheless expressly provides that “the taxes for which it is sold must be due and unpaid at the time of such sale.” (Our italics.) This mandatory provision is additional evidence of the legislative intent to make chapter 375, Laws 1941, relate only to the sale of real estate on which the taxes were “due and unpaid” and to no other real estate. Defendants further contend the petitions do not disclose plaintiff was a proper party to maintain the instant -actions. The demurrer, of course, admits the allegations of the petition heretofore stated relative to the oil company’s ownership of the property, that the taxes were all paid, that the records of the county treasurer’s office so disclosed and that the taxes were also paid each year after the date of sale and until the discovery of the alleged fraud in April, 1944. It is true that in cases to which chapter 375, Laws 1941, applies the sheriff’s deed when filed for record vests in the purchaser or grantee therein named, as against all persons, parties to such proceedings, a fee simple title and the deed is prima facie evidence of the regularity of all proceedings prior to the date of filing it for record. (G. S. 1941 Supp. 79-2804.) There being no taxes due and unpaid the act did not apply. No title passed to the purchaser. The oil company was not made a party to the tax foreclosure proceedings. For the purpose of the demurrer defendants admit the oil company, formerly the petroleum corporation, was and is the owner of the property and that all taxes were fully paid. The petitions disclose a sufficient interest in the plaintiff to enable it to maintain these actions. (Spicer v. Rowland, 39 Kan. 740, 744, 18 Pac. 908.) The actions may be maintained on legal or equitable grounds. (G. S. 1941 Supp. 79-2804b.) It is elementary that the entire matter of taxation, including the levy and collection of taxes, is statutory and does not exist apart from statute. (Magnolia Petroleum Co. v. Moyle, supra, p. 139, and cases cited.) Compliance with tax statutes is essential to acquisition of jurisdiction. (Crawford County Comm’rs v. Radley et al., 134 Kan. 704, 8 P. 2d 386; Madigan v. Smith, 137 Kan. 269, 20 P. 2d 825; Bryner v. Fernetti, 141 Kan. 446, 41 P. 2d 712; Cunningham v. Blythe, 155 Kan. 689, 691, 127 P. 2d 489.) In the tax foreclosure action presently challenged the county did not comply with the act but on the contrary it went outside the purview of the act and attempted to sell real estate which was not subject to sale and to which the tax foreclosure act did not apply. The various cases cited by defendants on the points treated have been examined. In view of the basis upon which this decision is founded those cases do not, in our opinion, justify a reversal of the trial court’s ruling. The plaintiff insists the tax foreclosure judgment was also void by reason of each of its three other theories previously noted. The point we have treated is sufficient to affirm the order overruling defendant’s demurrer. The opinion is not to be construed as passing on any other contention made by the parties. The order overruling defendant’s demurrer to plaintiff’s petitions is affirmed.	[ -12, 108, -11, 28, 10, -32, 42, -118, 72, -79, 39, 83, -29, -54, 4, 57, -81, 61, -11, 120, -41, -74, 67, 67, -106, -77, -47, -51, -80, 91, -12, -41, 72, 33, -54, -107, -122, -128, -57, 92, -50, 7, -119, 68, -39, 0, -76, 106, 112, 9, 113, -84, 115, 41, 28, -61, 73, 44, -53, 47, 80, -72, -86, -107, 95, 19, 1, 4, -100, -57, -56, -86, -112, 48, 8, -24, 91, 54, -122, 116, 7, 43, 41, 46, 99, 35, -124, -17, -8, -104, 14, -41, -115, -25, -112, 24, 35, 41, -106, 29, 124, 18, 7, -2, -18, -123, 31, 108, -121, -54, -10, -45, 13, 115, 26, 11, -21, -127, 48, 113, -55, -94, 92, 71, 120, 27, 79, -16 ]
The opinion of the court was delivered by Wedbll, J.: This is an appeal by the defendant Lehigh Portland Cement Company, a corporation, in an action to recover damages for personal injuries sustained by the plaintiff while working for defendant as an independent contractor. The jury was unable to agree on a verdict. Defendant has appealed from the orders overruling its demurrer to plaintiff’s amended petition and its demurrer to plaintiff’s evidence. The written contract under which appellee was employed was attached to his amended petition and was later adduced in evidence. We prefer to go directly to the second alleged error. The contract was dated March 19, 1947, but performance of the work was commenced in May, 1947. Under the terms of the contract appellee agreed to paint three cooler stacks at appellant’s cement plant after cleaning the surface for the paint job. Appellant furnished only the paint. Appellee owned and furnished all tools, equipment, rigging and ropes necessary for the job. It was specialized work. He worked on the job as weather permitted and entirely according to his own plans and methods. Appellant had no supervision or control over the work. The parties agree appellee was an independent contractor. The contract, in part, provided: “The first party agrees that he is an independent contractor, and in accepting this contract, and as a part of the consideration thereof, it is hereby specifically understood and agreed that in doing said work and in compliance of the contract that the Lehigh Portland Cement Company shall not in any way become liable to the said contractor, his agents, servants or employees for any damage to them or injury received by them in the doing of said work, either directly or indirectly or otherwise, or by reason of being upon or in the property of the Lehigh Portland Cement Company, it being specifically understood and agreed that in the performance of said work as an independent contractor, that the said first party is acting thereunder as an independent contractor and not as the agent, servant, employee or workman of said Lehigh Portland Cement Company; and that the said first party will save harmless the Lehigh Portland Cement Company from any and all liability thereunder.” The cooler stacks were sixty-five feet high. Appellee had. finished the outside of the stack at which the accident occurred and was working on the inside shortly before the accident. The stack rested on a base which was approximately thirty feet high. Appellee fell a distance of about fifteen feet while descending on the outside of the stack by means of his rope. As he descended the rope came apart and he landed on the cement platform of the base severely injuring both feet and his left ankle. While working on the inside of the stack appellee let his ropes down to the bottom of the stack on the inside. He claimed the' ropes were burned with hot clinkers. The accident occurred on Saturday, May 3. He had worked on the inside of the stack on the preceding day. He had done this same kind of work for appellant on previous occasions. Other evidence adduced on appellee’s direct examination, in substance, was: He had been a steeplejack all his life and was sixty-four years of age; he painted smokestacks, flag poles, church crosses, water tanks and objects of that character which an ordinary man cannot reach with a ladder; a man in his profession is equipped for each purpose, carrying different lines of tools required for different jobs; on the instant job it was necessary to use a rope with block and tackle; he did not start this work sooner because of the rainy season; he started to work on the inside of the stack on May 1; on May 2 he had cleaned the stack on which he was then working about halfway down on the inside; he worked from the top down; it got so dusty and dirty he came back out and stopped for the day; on Saturday, May 3, the day he was injured, he pulled himself to the top of the stack and dropped his rope back into the stack in order to proceed with the inside work; he remained there about an hour and a half and came back to the top; he had about 300 feet of rope altogether, all of which, except about sixty-five feet, was below him; the rope had been used some but it was still usable; there were no burned places on it on Saturday morning; he was working on the inside about halfway down the stack when it again became so dusty he came up for air; when he reached the top some man at the bottom gave him some sort of signal which he interpreted to mean that something was wrong and he stopped work; he stayed on top of the stack until the man came back and showed him some rope; he (appellee) knew his rope had burned; when he found his rope had burned he descended on the outside of the stack, when he reached the end of the rope he had a man tie some more rope to the burned end; he then started coming down and descended two or three feet when something broke; he did not know whether the knot had become untied or whether some of the rope had broken; he was about even with the man’s head when it happened; he could not say whether the rope broke or the knot had come untied; the rope was not burned when he went into the stack on the day of the accident ; he did not see the rope after he got to the ground; insofar as he knew the rope was still hanging on the stack. On cross-examination appellee, in substance, testified: The work of a steeplejack is a special profession; there are few people in the trade;* he was considered about as good at the work as anyone; he had cleaned and painted defendant’s cooler stacks two or three times before; in doing the work he used special rigging, which equipment he owned, and he had complete charge of the work; he was his own boss, determined when he would work, whether the weather was fit, and he went to work and quit when he deemed it advisable; he was thoroughly familiar with these stacks; the stacks were cool; he put the rigging up about March 18 or 19 and left it there until he started work on May 1; he knew what the McCaslin conveyer was; he had seen it before; it is a conveyer that is filled with red hot clinkers and is always hot; he could see the condition of the stack and knew its condition the day he was injured; the stack was cold when he went into it; he dropped his ropes down the inside of the stack; he could not see the bottom; the Mc-Caslin conveyer does not go into the stack; he did not know whether there were any hot clinkers at the bottom of the stack but his ropes were burned; after learning that his ropes had been burned he rearranged the rope from four strands to three strands; by doing that it decreased the strands which held his weight but gave him more rope length; when he rearranged the rope one piece of the burned rope passed through his hands; he examined it; it was burned off at the end; he was safe on the top of the stack; his re-strung rope on which he started down was of sufficient length to reach twenty feet from the ground; he intended to have a man tie a piece of rope at that place and to let the knot go to the top of the pulley which would give him twenty feet more rope so he could reach the ground; the man tied the rope; the knot passed through his' (appellee’s) hands; he could not say whether the knot came untied or whether the rope broke; above the knot the rope was in good shape and let him down; in determining whether he would leave the place of safety at the top of the stack and come down by the method indicated he exercised his own judgment; he did not ask anyone to put a pole or ladder to the top of the stack; he didn’t think of that at the time; he knew part of his rope was burned; he got down within twenty feet of the platform; he had asked no one to help him down from there but he did ask a man to tie on a piece of rope; the man tied it on át his direction; the Lehigh had nothing to do with that. On redirect examination appellee testified, in substance, he talked with Stanley Lee of the cement company. Lee knew he was going to work on this particular stack and told him it was all right. On recross-examination appellee, in substance, testified he did not talk with Stanley Lee the day of the accident but a day or two before and Lee then told him the stack was cold; the stacks could have been cool and were cold but he could not say what was at the bottom of the stack after he got to the top; he could have seen what was in the bottom of the stack from the outside; he took it for granted the condition was the same as on Friday; he did not work on Saturday morning; he assumed if the ropes had not burned on Friday they weren’t going to burn on Saturday. It is conceded Stanley Lee was appellant’s foreman. The attorney for appellee, in substance, testified: He went to appellant’s plant at the request of appellee and with appellant’s permission; he procured a portion of the rope which was found at the stack in question; exhibit 1 was a portion of the rope; he cut the exhibit from a portion of the rope that was there; one end of the rope was cut and the other end was just as he found it; the rope had been hooked to the top of the stack and had then been dropped to the bottom of the stack; he did this the day the lawsuit was filed. The action was filed December 11, 1947. Appellant insists first, appellee by express agreement relieved it of all liability for injuries caused directly or indirectly and, second, appellee was an independent contractor and his own evidence fails to establish a right to recover in any event. Appellee argues the contract contravenes public policy and is void. Appellant disagrees. We need not determine that controversy. In view of the record we think that irrespective of the contract appellee cannot recover in this action. Appellee made no inspection of the stack on Saturday morning before starting to work. Appellee admits an inspection from the outside would have disclosed whether the stack was hot or cold. Ignoring those particular circumstances entirely, however, it is nevertheless conceded appellee was in a place of entire safety after he learned his rope had been burned. He, therefore, was not injured at a time when he was ignorant of that fact. No willful or wanton negligence of appellant was alleged or established. If the act of burning the rope constituted the kind of negligence which, in view of the relationship of the parties, would subject appellant to liability, it is admitted the negligence was known to appellee prior to his injury. Appellee had opportunity to inspect all the rope and did inspect at least part of it before using it. Under these circumstances appellant cannot be charged with appellee’s failure to properly inspect the rope or with negligence>in appellee’s exercise of his own judgment and conclusion the rope remained adequate for descending purposes or with negligence in later tying the knot. Had appellee requested that appellant provide a safe descent and had appellant refused such request, a wholly different question might be presented. An entirely different question also would have been involved had appellant voluntarily but negligently undertaken to provide the means of descent which resulted in injury. Appellee, not appellant, undertook to direct, and did direct, that another person tie a piece of rope to the rope on which appellee was descending. Appellee admits appellant had nothing whatever to do with that decision or order. Appellee cites no authorities and we are aware of none which make appellant’s conduct, under the circumstances existing here, the proximate, or legal, cause of the injury. Appellee frankly admits he did not know, and it remains wholly undetermined, whether the rope broke due to its burned condition or came apart because the knot was insecurely tied. The legal cause of the injury, therefore, remains wholly speculative. Judgments cannot be permitted to rest on mere conjecture and speculation. Although negligence may be established by circumstantial evidence such evidence must point directly to the negligence of the defendant. It is not sufficient that such evidence be merely consistent with his negligence. (Hendren v. Snyder, 143 Kan. 34, 53 P. 2d 472.) This rule has been repeatedly approved in our subsequent decisions. A few of them are Crowe v. Moore, 144 Kan. 794, 62 P. 2d 846; Hogan v. Santa Fe Trail Transportation Co., 148 Kan. 720, 85 P. 2d 28; Hurla v. Capper Publications, Inc., 149 Kan. 369, 87 P. 2d 552; Miller v. Gabbert, 154 Kan. 260, 118 P. 2d 523, and cases therein cited; Bessette v. Ernsting, 155 Kan. 540, 127 P. 2d 438. The demurrer to appellee’s evidence should have been sustained. The cause is remanded with directions to enter judgment for appellant. Harvey, C. J., concurs in the result.	[ -112, 120, -36, -115, 26, 96, 58, -38, 125, -91, -89, 85, -17, -41, -116, 107, -75, 125, 80, 106, 127, -93, 19, 107, -42, -109, -79, -59, -111, 94, -26, -33, 76, 32, -54, -99, -26, 2, -59, 84, -54, 5, -97, -49, -7, 65, 48, 58, 116, 15, 49, -100, 115, 36, 25, -50, 13, 44, 123, 45, 82, -72, -125, -115, 127, 19, -93, 4, -98, -121, -40, 26, -104, -71, 0, -24, 115, -74, -60, -12, 35, -87, 8, 96, 99, 32, -111, -59, -2, -8, 45, -2, -115, -91, 49, 56, 24, 5, -73, -99, 116, 22, 39, 62, -18, 29, 31, 109, -125, -113, -12, -77, 15, 124, 30, -128, -21, -125, 23, 100, -54, 40, 92, 71, 115, 27, 94, -120 ]
The opinion of the court was delivered by Smith, J.: This is an action to partition the corpus of a trust consisting of real estate under the terms of a will. The estate was partitioned and what would have been the share of one of the beneficiaries was by the trial court in its final judgment awarded to a party to whom this beneficiary had mortgaged it and who had foreclosed the mortgage and was in possession. This beneficiary has appealed. An action involving this trust filed many years ago and in which orders have been made from time to time and which had not been finally determined was consolidated with this action in the lower court. The appealable order was made, however, in the action to distribute the corpus of the trust. About many of the facts there is no dispute. Samuel M. Knox, out of whose will this action arose, died testate a resident of Allen county, Kansas, on May 14, 1907. His will was duly admitted to probate in Allen county. He owned at his death 4,800 acres of land in that county as well as some land in other states. He left surviving him his widow Hannah, Mary K. Stevens, a daughter, and Samuel E. Knox and Anson H. Knox, sons. The will named Hannah H. Knox and Mary K. Stevens as executors and also as trustees under the trust created by the will. The will contained ten paragraphs. It bequeathed all the testator’s real estate in trust to his wife and two daughters. It set up a somewhat involved trust and provided that none of the real estate bequeathed should be sold as long as any of testator’s children should live, except to pay debts; directed the trustees to lease the farm lands, and to keep the income from the Allen county farm land separate from that from other real estate. The will then bequeathed the rents from the real estate in trust to the trustees and directed that it should be equally. divided among testator’s children. The will then contained a clause, as follows: “And I will and direct that no part of real or personal estate hereby devised or bequeathed in trust to said named trustees and the survivor of them and their successors in trust hereunder or directed herein to be held and considered as a part of the trust estate hereby created, and no part of the rents, income or proceeds from such trust estate shall, prior to the actual division thereof and the actual delivery or conveyance thereof to the beneficiaries entitled thereto hereunder or while the same is in the custody possession or under the control of said named trustees or the survivor of them or their successors in trust hereunder, in any manner whatsoever, be bargained, sold, assigned, conveyed, mortgaged or incumbered by my said wife or either of my children, other than as trustee hereunder, or by either of my descendants or by either of my next of kin or be subject to any debt of or claim against my said wife or either of my children or either of my descendants or either of my next of kin or be subject to any suit or proceeding brought to collect any such debt or claim out of the share of my wife or share of any such child, descendant or next of kin, and in making divisions of such trust estate and the rents, income and proceeds therefrom as in this will directed, said named trustees and the survivor of them and their successors in trust hereunder shall utterly disregard all and every transfer, assignment, conveyance or incumbrance thereof or any part thereof made by my said wife or by either of such children, descendants or next of kin.” The will then provided that at the death of the testator’s last surviving child the real estate bequeathed should be equally divided per stirpes between testator’s then surviving descendants and also that the trustees should report to a district court in Illinois as to land located in that state and to the district court of Allen county as to land located there. It appears clear that the trust created by the will was what is designated a spendthrift trust. Soon after the will was admitted to probate Hannah exercised the option provided for her by statute and elected to take under it rather than under the will. Pursuant to this election one-half of the 4,800 acres of Allen county land was set off to her. This left 2,400 acres in the trust. On November 1, 1910, Hannah Knox and Mary K. Stevens filed an action in the district court of Allen county, in which they asked instructions as to how to administer this trust. Anson H. Knox and Samuel F. Knox were named defendants in that action. Service was had on both of them. From now on in this opinion for the sake of clarity this action will be referred to as case number 9,159. The district court sustained a demurrer to the petition. On appeal we reversed the district court. (See Knox v. Knox, 87 Kan. 381, 124 Pac. 409.) It was argued here that the petition was demurrable because no particular dilemma, upon which judgment could be pronounced, was -shown to exist. In dealing with this argument we discussed the broad general nature of suits to construe wills and said the court below could, upon motion of either party or on its own motion, cause the petition to be made definite and certain so as to present issues upon the various provisions of the will in such a manner as would admit of an orderly trial and final judgment. With such an opinion the judgment sustaining the demurrer to the petition was reversed and the case remanded to the district court for further proceedings. On July 27,1912, the plaintiffs in case 9,159 filed an amended petition. They alleged they were in grave doubt as to the construction of the will because it was indefinite, uncertain and contradictory and asked for instructions. Issues were joined and the parties entered into a stipulation. As a part of it Hannah H. Knox and Mary K. Stevens withdrew as trustees and Mary K. Stevens relinquished all her right, title and interest in any of the real estate in question and she, together with Samuel F. Knox and Anson H. Knox, agreed that the 2,400 acres of Allen county land remaining in the trust after one-half of the original 4,800 acres had been .allotted to Hannah was to be partitioned between Samuel F. Knox and Anson H. Knox. The tract with which we are interested here is 400 acres, a portion of the 1,200 acres awarded to Anson H. Knox. The trial court found that the land left in the trust could not be managed under it at a profit nor to the best interest of the parties and partitioned it as provided in the stipulation. The decree of the court provided the land was allotted to them in fee simple. Anson H. Knox was appointed trustee of the 1,200 acres awarded to him and Samuel F. Knox was appointed trustee of the land allotted to him. Jurisdiction of the entire matter was retained by the court. Anson H. Knox died June 8, 1929. He left surviving him Samuel M. Knox, Jr., who is the appellant here, and Edna Knox Swigart and Mary Knox Finster, the latter two daughters who brought this action for partition. They all three filed proceedings in the district court in case 9,159 of which the trial court had retained jurisdiction and asked that trustees for the 1,200 acres be appointed to succeed him, their father Anson H. Knox. The trial court on July 12, 1930, found that upon the termination of the trust the applicants would be entitled to the entire property held by Anson at his death; that they had agreed amongst themselves to a division of it when the trust estate was terminated and that it would be to the advantage of each of them to be appointed trustee over the land which would eventually belong to each of them. The decree then proceeded to appoint each of the applicants trustee over a described 400-acre tract; Samuel M. Knox, Jr., was appointed trustee for the 400-acre tract, with which we are concerned here. On December 23, 1914, Edna K. Swigart and Mary K. Finster executed and delivered to Samuel M. Knox, Jr., a quitclaim deed to the trust in question. This deed was recorded June 13, 1936. Similar deeds were exchanged between all the parties. The trial court found that none of the above parties ever made any report or did anything required of the trustees by the will with reference to the land allotted to them but that .Samuel M. Knox, Jr., entered into open and notorious possession of the land allotted to him and held it in fee simple; mortgaged it twice; de fended an'ejection action based on a tax deed and executed oil and gas leases upon it. The appellant disputes the correctness of this finding for lack of evidence. He pleaded, however, in his answer in this case that for more than twenty-five years prior to November 14, 1940, on which date he as an individual only was evicted from possession of the tract, he resided upon it either as trustee or with the consent of the previous trustee; made valuable improvements upon it and raised his family there with the expectation that upon the termination of the trust it would become his. On June 13, 1936, Samuel M. Knox, Jr., borrowed $4,000 from the Allen County State Bank and gave a note secured by a mortgage on the tract to secure it. This note was paid on November 10, 1936, and released of record that day. On the 9th day of November, 1936, Samuel M. Knox, Jr., for the purpose of paying off that note, gave R. C. Highbargin his note for $5,000 and secured it by a mortgage on the same land. On April 2, 1938, this note became in default and Highbargin brought an action to foreclose it. It should be noted here that this mortgage was given by Samuel M. Knox, Jr., as an individual, not as a trustee. Service was had on him but he defaulted. On June 28,1938, the mortgage was foreclosed and judgment entered against Knox for $5,466.60. In due time the land was ordered sold, the sale was confirmed and a sheriff’s deed was issued to R. C. Highbargin, the mortgagee. On February 9, 1940, Knox was in possession of the property and refused to give possession of it to Highbargin, whereupon Highbargin filed a praecipe for a writ of assistance commanding the sheriff of Allen county to forthwith dispossess Knox. When the sheriff was proceeding to execute this writ Samuel M. Knox, Jr., as trustee, under the will of Samuel M. Knox, deceased, brought an action against the sheriff and Highbargin in which he set out the fact that he had been appointed trustee to the real estate in question; that he had taken possession of it on July 12, 1930, as trustee. He set out the terms of his grandfather’s will; set out the facts as to case 9,159 that had been brought to construe the will; told about how his father had been trustee of the land and had taken possession of it; alleged that all the children of the testator were dead except Samuel F. Knox; stated that the defendants were without lawful rights of authority to dispossess him and take possession of the real estate in question; alleged that his legal remedy for such illegal acts was inadequate and asked that the sheriff be enjoined from dispossessing him as the writ of assistance that had been issued in the mortgage case commanded. To this petition Highbargin answered with a general denial; then he set out that he was the owner of the land in question; told about how Knox borrowed the money from him and gave a mortgage for it and that he had foreclosed the mortgage; the sale had been confirmed; the land sold and the period of redemption expired; that the action was one collaterally to attack the judgment in the mortgage foreclosure case; that in June, 1936, the land had been subject to large tax liens; told the story as related here about how Samuel M. Knox, Jr., had come into possession of the land; that the district court of Allen county was a court of competent jurisdiction for the purpose of administering the trust; told about the various orders that have been set out heretofore in this opinion; alleged that after the entry of the order to Anson H. Knox, setting aside the 1,200 acres heretofore referred to, he entered into open, notorious, and exclusive possession of it; told about how he had died and left the children heretofore spoken of; that from December 23, 1914, Samuel M. Knox, Jr., has in his own right been in exclusive and adverse possession of the real estate in question; that he had performed many acts of ownership with reference to it; and that by his acts, possession and claim of ownership and dominion over it, he had been as a matter of law the'full, actual, undisputed legal and equitable owner of it and that he was such owner prior to November 9, 1936; alleged that the mortgage was a good and valid conveyance to the defendant and that by reason of the facts stated Knox was estopped from claiming or asserting any right'or title to the real estate by reason of case 9,159 to construe the will and the action in foreclosure and that plaintiff, was not entitled to any relief. As a reply to this, Samuel M. Knox, Jr., as trustee, admitted the execution of the note and mortgage, but alleged that he was not in his capacity as trustee a party to the mortgage foreclosure action and the issues involved in that action were not litigated or determined in the mortgage foreclosure action; denied that the taxes paid on the land in June, 1936, were paid from any money borrowed from Highbargin; stated that the loan of $5,000 was made to him as an individual, not as a trustee. The action proceeded to trial to the court without a jury. The court found the issues for the defendant and against the plaintiff and in particular that the plaintiff as an individual and also as a trustee had been in possession of the land for many years; that the trustee never filed any report, never was active in any way and had obtained a loan on the land in question; the court recited that whatever interest the plaintiff had as trustee had been waived by plaintiff; that it would be inequitable to permit him to escape paying the mortgage and that the court found the issues in favor of the defendants and against the plaintiff and the injunction should be denied. The court did say further that the injunction was in all probability not the proper remedy. Following this judgment, the plaintiff appealed to this court. This court fixed a supersedeas bond, however, which the appellant was unable to furnish, and the appeal was dismissed. On November 7, 1940, the sheriff under the writ of assistance issued in the case of Highbargin against Knox, the mortgage foreclosure action placed Highbargin in possession. On November 20, 1940, Knox filed a motion to reinstate the appeal, but that motion was denied. On August 22, 1944, Samuel F. Knox, being the last surviving child of the testator, Samuel M. Knox, died, whereupon Edna K. Swigart and Mary K. Finster, two daughters of Anson H. Knox, and being sisters of Samuel M. Knox, Jr., filed this present action, in which they asked that the corpus of the trust be partitioned, they named some forty-seven parties defendants and amongst them were all of the grandchildren and some great-grandchildren of the testator, Samuel M. Knox. In their petition they told their story about as it has been detailed in this opinion. They asked that the court proceed to divide the 2,400 acres of land in accordance with the provisions of the will. Many of the children and grandchildren answered setting out the facts pertinent to their case and asking the same relief. Samuel M. Knox, Jr., appellant here, filed an answer, in which he admitted many of the allegations of the petition and in which he alleged that he had been in possession of the 400 acres in question as trustee for more than twenty-five years prior to November 14, 1940, on the date he as an individual was evicted from possession of it. He then set out that the land was worth about $13,000 and since the death of the testator on May 14, 1907, there had been more uncertainty as to the provisions of the trust contained in the will; that about November 9, 1936, he verbally offered to defendant Highbargin a note secured by him covering the real estate and offered Highbargin an abstract of title; that after examination Highbargin agreed to make the loan and that on November 9, 1936, in consideration of the loan of $5,000 the defendant Samuel M. Knox, Jr., executed his promissory note in writing payable to Highbargin and gave him a mortgage covering the above real estate; that this mortgage loan was obtained by him as an individual and was not made under authority of any court and was not made for the purpose of paying any debt of the testator, Samuel M. Knox, Sr., and that he was unable to pay the loan and the foreclosure action was commenced and duly pursued to the delivering of the sheriffs deed; that when the note came due he was unable to get a further loan because all prospective lenders refused to approve his title. He then alleged that because of the provisions of the last will of Samuel M. Knox, Jr., deceased, his mortgage to Highbargin did not give Highbargin any lien on the real estate and that the sheriff’s deed held by Highbargin did not vest in him any right, title or interest in the real estate and that the real estate was part of a spendthrift trust and for that reason the mortgage could be of no force and effect; that the mortgage and the sheriff’s deed based on it should be set aside for naught. Samuel M. Knox, Jr., offered to pay to Highbargin the principal amount of the loan, that is, $5,000, together with all interest thereon, and any sum the court might find Highbargin entitled to. Knox prayed that the terms of the trust be fully executed by the court. Samuel M. Knox, Jr., also filed an answer as trustee, in which he set out about the same allegations that were contained in his answer in person. Highbargin filed an answer and cross petition in which he set out many of the facts about as they have already been detailed in this opinion. Samuel M. Knox, Jr., replied denying many of the allegations in the answer and cross petition of Highbargin and specifically alleged that the court first acquired jurisdiction of the trust in case 9,159, Knox v. Knox; that this jurisdiction had never been relinquished; that since the court had acquired that jurisdiction it was precluded from exercising any further jurisdiction, such as the foreclosure of the mortgage; and the judgment in that case was void for want of jurisdiction; and that the court was without jurisdiction because the court was not convinced of the inadequacy of the legal remedy and also because the court had already acquired jurisdiction in case 9,159; that the two actions have been consolidated for trial. Knox denied that the issues of the present action were res judicata on account of the issues in the above actions. The trial court made lengthy and detailed findings of fact and in its judgment proceeded to award the real estate in question to the grandchildren and great grandchildren of the decedent except that as to the 400 acres that had been awarded to Samuel M. Knox, Jr. The court awarded to the defendant R. C. Highbargin, his heirs and assigns the 400 acres which has been the subject of this appeal. Samuel M. Knox, Jr., individually and as trustee, moved the court for a new trial and for an order setting aside certain-findings of fact and for additional findings of fact. All these motions were overruled and the defendant Samuel M. Knox, Jr., has appealed. The story has taken a long time to tell because it covers a period from 1907 to the present, and several actions and many different proceedings in these actions. Stated succinctly, however, the legal question involved is the claim of Samuel M. Knox, Jr., that this is a spendthrift trust, that is, that none of the real estate bequeathed to the trustees could be alienated or any action taken which would prevent its descending to the person for whom the testator originally intended it. He argues from this that since the mortgage he gave Highbargin in 1936 was given as an individual, not as a trustee, and since it was foreclosed against him as an individual and not as a trustee nothing has ever happened to deprive him of his title to this land as trustee. , The appellee Highbargin argues that the whole matter is res judicata for many reasons, first the original action in Knox v. Knox, 9,159, wherein following the stipulation, the court gave Anson H. Knox the fee simple title to the 1,200 acres of land which included the 400 which appellant is now claiming, and that since no appeal was taken from that and all the parties acquiesced in it, Samuel M. Knox is now estopped from questioning it. He also maintains that the claim now advanced by Samuel M. Knox, Jr., is res judicata on account of the judgment in the foreclosure action from which no appeal was taken. In answer to that, Knox contends that the mortgage foreclosure action was against him in his own right, and the judgment therein had no effect whatever upon his title as trustee. All of these arguments overlook the force to be given the judgment in the case of Knox, as trustee, against the Sheriff and Highbargin. This action was brought by Knox, as trustee. The appellant cites and relies on many cases where we have upheld a spendthrift trust. (See Sherman v. Havens, 94 Kan. 654, 146 Pac. 1030.) As stated in that opinion we have uniformly held that the wishes of a testator in a will such as we have here should be carried out. The trouble about enforcing that rule here began in 1910 when the trial court in case 9,159 first partitioned the 2,400 acres between the two brothers, Anson H. and Samuel, and purported to confer on them a fee simple title as well as making them each a trustee. Apparently at the same time this was done the appellant, Samuel M. Knox, Jr., was put into possession of the 400-acre tract in controversy here. It is clear from the will that the testator never did intend that any of his children should come into actual possession of any of the real estate he owned at the time of his death. He intended that it should be operated as farm land by the trustees until his last child was dead; hence the provision about the land itself being partitioned when that eventuality should happen. They did come into possession of it though, and thirty-eight years later the appellant is asking us to undo all of the proceedings and orders, and the effect thereof, that have transpired since the petition in that action was filed, so long ago. It is a great deal as though he were asking us to unscramble a mess of eggs. However, if what .transpired in case 9,159 were the only thing with which we had to deal, we would not find the task insurmountable. But the appellant is faced with the task of getting rid of the force, not only of the orders and judgments in that case, and those in the mortgage foreclosure action, but also the judgment in the action he brought as trustee to enjoin the enforcement of the judgment of mortgage foreclosure. Many interesting legal points are discussed by learned and industrious counsel for the appellant in getting rid of these judgments. We find it unnecessary to consider all of these questions, however. We have concluded that the judgment in the case of Knox, as Trustee, against Highbargin, being an injunction suit to enjoin the sheriff from executing the writ of assistance in the mortgage foreclosure case, is res judicata of every issue raised by the appellant in this partition action. It is true the mortgage foreclosure action was brought against Knox in his own person rather than as trustee when as a matter of fact he was, in name at least, trustee. However, the injunction action was brought by Knox as trustee. Once the trustee brought such an action the allegations and the issues of fact were identical with those at issue in this case as far as Knox is concerned. This case raised the only legal objection there was to the judgment in the foreclosure action. It is worth noting, too, that in it he did not make any tender of the money that he admitted he borrowed from Highbargin. Appellant in dealing with the effect to be given the judgment in that case relies on what we said in Probst v. Weigand, 133 Kan. 232, 299 Pac. 611. There we held: “A former judgment is not an estoppel or bar to a second action between the same parties where the cases are' brought upon different causes of action unless the matters involved in the second were actually tried and finally determined in the first.” The appellant then states that the action to obtain judicial determination as to who was entitled to the various tracts of land left by the testator presents altogether different issues from those involved in the injunction action. We have examined the pleadings in all of the actions carefully and we cannot find a basis for the statement as to the issue raised by appellant in this action. The fact is, the issues are identical. When this partition action was commenced, the title to the 400 acres with which we are concerned was in Highbargin, a stranger to the will. In order for a judgment in this partition action to have any effect on the title to this tract, the appellant must get rid of the judgment in the mortgage foreclosure action. He has attempted to do this in the injunction action and has failed. The appellant points to the language of the trial judge in the injunction action wherein he stated that injunction was probably not the proper remedy. From this language he argued vigorously that action failed for other reasons than on its merits. He does not point out, however, in his brief that the court, before using the above language, said he found for the plaintiff and against the defendants on all the issues. I do not suppose we will ever know why Knox did not defend the mortgage foreclosure action as a trustee since after it was apparently too late he did bring the injunction action as trustee. However, it is unnecessary for us to know that to reach a conclusion on this appeal. The authorities are myriad to the effect that all matters which were or have been or could have been litigated in an action are res judicata. (See First Nat’l Bank v. Schruben, 125 Kan. 417, 265 Pac. 53; Lins v. Eads, 145 Kan. 493, 66 P. 2d 390; and Mydland v. Mydland, 153 Kan. 497, 112 P. 2d 104.) The judgment of the trial court is affirmed. Wedell, J., concurs in the result.	[ -10, 108, -36, 60, 10, -16, 42, -104, 97, -31, -91, 83, 121, 18, 21, 43, 50, 29, 65, 105, -28, -13, 23, -127, -46, -13, -1, -35, -80, -35, -25, -42, 76, 36, 10, -99, -26, -52, -57, 92, -114, 1, 40, -51, -37, 0, 52, 111, 22, 75, 69, -97, -13, 40, 25, -29, 104, 46, -53, -88, 80, -72, -82, -122, 79, 23, 51, 1, -80, -125, 72, 106, -112, 17, -120, -24, 81, -74, 22, -12, 7, -119, 45, 110, 102, 17, 93, -1, -80, -120, 46, -73, -115, -25, -106, 88, 32, 64, -74, -104, 124, 80, -117, -4, -26, 21, 29, 108, 5, -113, -42, -93, 11, 60, -102, 3, -5, -119, 32, 113, -51, 34, 92, 103, 117, -101, -113, -72 ]
The opinion of the court was delivered by Smith, J.: This was an action to partition a forty-acre tract of land. Judgment was entered partitioning it. The plaintiff and two of the defendants have appealed. These appeals were consolidated in this court. A designation of the parties at the outset will be helpful. In July, 1920, Frank F. Monroe took title to the tract in his own name. Before the final judgment was entered he died. He and his wife, Anna, had two sons, E. L. Monroe and C. B. Monroe. Defendant Lura Monroe is the widow, and defendant Lynne C. Monroe the son and the only child of E. L. Monroe, who is dead. Defendants Catherine Monroe Straus and June Sheridan Monroe are granddaughters of Frank F. Monroe. The dispute in this case arises between L. C. Kennedy, the plaintiff, and Lura Monroe and Lynne C. Monroe on one side and Catherine Monroe Straus and June Sheridan Monroe on the other on account of some conveyances executed by Frank F. Monroe during his lifetime. These will be noted now. In July, 1923, Frank conveyed by warranty deed to his wife Anna an undivided one-half interest in the land in question, title to which had stood solely in his name up to that time. This conveyance was recorded and pursuant to it Anna and Frank were the tenants in common of the tract, each owned an undivided one-half interest in the tract. Parenthetically it should be stated they lived upon it. Anna died intestate in December, 1926. Her sole heirs at law were her husband, Frank, and the two sons, E. L. and C. B. At her death Frank inherited one-half of her undivided one-half interest in the tract, and the two sons inherited one-half of her undivided half interest or each an undivided one-eighth. Thus Frank owned twelve-sixteenths and the sons each two-sixteenths. There is no dispute either of fact or law thus far although there is a dispute about whether Frank knew or understood what his exact interest was. At any rate, he, in May, 1930, made to the two sons a conveyance of an interest in the tract, which later caused this lawsuit. That conveyance was a quitclaim deed. He described the interest conveyed as follows: “All of the one-half interest in and to the Southwest Quarter of the Southwest Quarter of Section Thirty (30), in Township Thirty (30) South of the Base Line, Range Twenty-five (25), East of the Sixth Principal Meridian, as shown by the Government Survey thereof; “This Deed is made specially to carry out the will and wish of Anna C. Monroe, former wife of this grantor, that these grantees should have and own an undivided one-half interest in this forty acres of land.” It will be noted in the first paragraph of the description he stated he was conveying a “one-half interest.” In the second paragraph he stated his purpose in making the conveyance was that the two sons should own an undivided one-half interest in the tract. Since each already owned an undivided two-sixteenths interest it was only necessary in order to carry out his announced intention for Frank to convey to them an undivided one-fourth interest, which would be a two-sixteenths interest to each, making each one own four-sixteenths. This would have left Frank with eight-sixteenths or an undivided one-half interest, just what he had before the death of his wife. Under that view he was really conveying to the sons the interest he had inherited from their mother. On the other hand, if the description used in the first paragraph be construed to be the true one then each of the boys received four-sixteenths by that conveyance, giving them each six-sixteenths and leaving Frank with only four-sixteenths. At any rate, E. L. Monroe died in 1942 leaving as his only heirs Lura, his wife, and Lynne C., his son, both defendants in this action. Under one view they each inherited from E. L. two-sixteenths. Under the other view three-sixteenths. In April, 1943, C. B. Monroe and his wife executed a warranty deed to L. C. Kennedy, in which they did not refer to any fractional interest but instead described the interest conveyed as “all our right, title, interest and estate.” Under one view of this conveyance Kennedy took a four-sixteenths interest, under the other six-sixteenths, depending on how the conveyance from Frank F. Monroe to his sons be construed. In August, 1942, Frank Monroe by a quitclaim deed conveyed to his granddaughters, Catherine Monroe Straus and June Sheridan Monroe, an interest in the tract, which was described in the deed as “all of my undivided one-half interest in.” Under one view Catherine and June each took four-sixteenths. Under the other two-sixteenths. The interests taken by all these people depends on what interest E. L. and C. B. Monroe took by the deed of May, 1930, from their father. There is no dispute about these facts. They were all stipulated. In its judgment the trial court held the second paragraph of the description to be the correct one and gave L. C. Kennedy four-sixteenths ; Catherine Monroe Straus, four-sixteenths; June Sheridan Monroe, four-sixteenths; Lura Monroe, two-sixteenths; and Lynne Monroe, two-sixteenths. Kennedy and Lura and Lynne have appealed. Kennedy claims he should have had six-sixteenths and Lura and Lynne each claim they should have had three-sixteenths. Now as to .the pleadings. Kennedy filed the petition and said he owned six-sixtéenths; Lura Monroe and Lynne C. Monroe, three-sixteenths each; and Catherine and June, two-sixteenths each. Lura and Lynne answered admitting generally the allegations of the petition. Frank Monroe answered admitting most of the allegations of the petition but setting out the conveyance as we have already described, claiming a life estate in the property, and stating that at the time of the conveyance:to E. L. and C. B. Monroe he was of the mistaken notion that title to all the interest in the tract vested in him at the death of his wife and by that conveyance he only wished to convey to them enough of an interest so that they would together have as much of an interest as their mother had at her death. He prayed for a judgment giving him a life estate. Catherine Monroe Straus filed an answer in which she admitted many allegations of the petition. As to the conveyance of Frank Monroe of May, 1930, to E. L. and C. B. Monroe she alleged as follows: “That after the death of the said Anna C. Monroe, the said Frank F. Monroe, being mistaken as to the law of descent and distribution and believing that after the death of his wife all of the title to said property Was vested in him, and desiring to carry out the wishes of his deceased wife that their two children, E. L. Monroe and C. B. Monroe, own an undivided one-half interest in said property, did on the 22nd day of May, 1930, execute a Warranty Deed to an undivided one-half interest in said property to his two sons, E. L. Monroe and C. B. Monroe, and stated in said Deed, ‘This deed is made specially to carry out the will and wish of Anna C. Monroe, former wife of this grantor, that these grantees should have and own an undivided one-half interest in this forty acres of land.’ ” She also alleged the deed to her and June. She prayed that she be adjudged to be the owner of one-fourth interest in the tract or four-sixteenths. June Sheridan Monroe filed an answer to the same general effect. Kennedy filed a motion to require Monroe to make his answer more definite and certain, and to strike certain portions. This was sustained in part and overruled in part but in view of what happened later in the action we need not discuss that further. Kennedy also filed a motion to compel Catherine Monroe Straus to make her answer more definite and certain and to strike portions of it. . We are interested only in the part of this motion which was sustained. , In paragraph 3 Kennedy had asked to have stricken from the answer the following: “. . . being mistaken as to the law of descent and distribution and believing that after the death of his wife all of the title to said property was vested in him, and desiring to carry out the wishes of his deceased wife that their two children, E. L. Monroe and C. B. Monroe, own an undivided one-half interest in said property.” That paragraph of the motion was sustained. In paragraph 7 Kennedy had asked that the defendant be required to state whether or not the agreement spoken of in the answer was oral or in writing and if it was in writing that a copy of the writing be attached. This paragraph of the motion was sustained. The same motion was directed at the answer of June Sheridan Monroe. The same ruling was made by the court. Catherine filed an amended answer to conform with the order of the court in which she made an allegation, as follows: “. . . the said Frank F. Monroe did, on the 22nd day. of May, 1930, execute a Warranty Deed to an undivided one-half interest in said property to his two sons, E. L. Monroe and C. B. Monroe, and stated in said Deed, ‘This deed is made specially to carry out the will and wish of Anna C. Monroe, a former wife of this grantor, that these grantees should have and own an undivided one-half interest in this forty acres of land.’ ” June filed an amended answer of the same general nature. Kennedy and Lura Monroe and Lynne Monroe alb filed demurrers to the answers of Catherine and June on the ground that each disclosed upon its face that the defenses attempted to be asserted were barred by the statute of limitations and did not state facts sufficient to constitute a defense to the petition. Lura and Lynne demurred, also on the ground that the answer did not state facts sufficient to constitute a cause of action for reformation of a written instrument or a defense to plaintiff’s cause of action. All these demurrers were overruled. The plaintiff Kennedy and Lura Monroe and Lynne Monroe all filed motions for judgment on the pleadings. These motions were all overruled. As has been stated, the facts were all stipulated and have been heretofore set out in this petition. The claims of the different parties have also been set out. The appellants argue first that their demurrers should have been sustained. They point out first the description in the deed from Frank F. Monroe to E. L. Monroe and C. B. Monroe under date of May 22,1930, and argue that since appellees claimed the deed conveyed only a one-fourth interest they had two remedies or theories of defense available and that these two defenses were, first, that the language used was a mistake and did not express the intention of the parties, in which case the court should reform the deed, or that the language was ambiguous and should be construed to mean that the grantor only intended to convey an undivided one-fourth interest. In support of this argument appellants cite and rely on opinions where we have held that once a party makes an election as to a remedy he is bound by his election. These opinions are not in point here. In the first place, a defendant may set out more than one defense in his answer. (See G. S. 1935, 60-710.) This section provides : “The defendant may set forth in his answer as many grounds of defense, counterclaims setoff and for relief as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.” Furthermore, should the answers be construed as appellant argues they should be, there is nothing inconsistent in the position taken by appellees in them. Under such circumstances as many different defenses as he sees fit may be pleaded. (See Christy v. Pember, 155 Kan. 665, 127 P. 2d 437; also, Light Co. v. Waller, 65 Kan. 514, 70 Pac. 365; Disney v. Jewelry Co., 76 Kan. 145, 90 Pac. 782; and Brownlee v. Bliesner, 120 Kan. 145, 242 Pac. 453.) The above authorities would dispose of appellant’s argument if it should be held that appellees actually pleaded two different theories. The fact is they did not do so. The reasonable construction of their amended answer is that they asked the trial court to construe the somewhat ambiguous language in the deed in question. The appellees made the statement in open court they were asking only for construction of this language. A reasonable interpretation of the allegations of these answers would lead to no other conclusion. As amended, their answers never did ask for a reformation. The language of the deed was ambiguous. Standing alone the first paragraph of the description apparently was intended to describe an undivided one-half interest. The second paragraph states it to be the intention of the grantor that only enough interest should pass so that the two grantees should have an undivided one-half. Since they already owned anjundivided one-fourth by inheritance then all it would be necessary to convey in this deed would be an undivided one-fourth. In construing a deed courts should consider the instrument as a whole. In Epperson v. Bennett, 161 Kan. 298, 167 P. 2d 606, we held: “Deeds — Construction and Effect — Intent of Grantor. The rules followed: (1) that deeds as well as wills are to be construed in accord with the intent and purpose of the grantor after examination of the entire instrument under consideration. . . .” (Syl. HI.) The trial court considered all the surrounding facts and circumstances, that is, the age of the grantor, the family relationship of the parties, that the grantor had conveyed a half interest to his wife during her lifetime. A reasonable inference to be drawn from these facts and circumstances is that the grantor did not wish to take any interest in this tract by inheritance from his wife but wanted their sons to have all her interest. One circumstance that points strongly to this conclusion is the fact that in 1942 when he made the conveyance to appellees he described the interest conveyed as “all. my undivided one-half interest.” See, also, Bennett v. Humphreys, 159 Kan. 416, 155 P. 2d 431, where we held: “Where the instrument itself is ambiguous as to the intention of the grantor, the surrounding facts and circumstances, attendant upon execution of a deed, may be considered in determining the intention.” ’ (Syl. ¶ 2.) Once we hold that the answers of the appellees asked the court to construe the deed rather than to reform it the argument of appellants that the statute of limitations began to run in 1930 when the deed to the two sons:was given loses .its force. Appellants next argüe that appellees were estopped from asserting any defense inconsistent with their original defense of mistake and reformation and hence their motion for judgment on the pleadings should have been sustained. We have already dealt with that argument. The appellees as the issues were finally made did not ask for reformation. They simply asked to' have an ambiguous deed construed. There was never any inconsistency in their positions. Appellants next argue that paragraphs 9, 14, 15 and 16 of the stipulation of facts should not have been considered by the trial court. The stipulation was entered into by the parties with the understanding that either party could introduce evidence at the trial if he wished, and either party could object to any paragraph of the stipulation on the ground it was incompetent or irrelevant. The paragraphs of the stipulation appellants argue should not have been considered by the court are the ones which state Monroe was seventy-four years old when he executed the conveyance to his two sons and owned no other real estate; that no money was paid him for the conveyance but they were valid, voluntary gifts; that the parents of the appellees had separated when the girls were quite young and they had spent a number of their vacations on the tract in question; one of them had furnished him money for his support in his declining years; and none of the parties lived with Monroe on the tract at tlje time of any of the conveyances. When the stipulation was submitted at the trial no other evidence was offered. Appellants objected to the above paragraphs being considered. The objection was overruled. Appellants argue such ruling was error. Appellants did not file a motion for a new trial. Ordinarily a party cannot raise trial errors on appeal unless he submitted them to the trial court in a motion for a new trial. (See McKinney v. Sackett, 144 Kan. 290, 58 P. 2d 1121; also, Brown v. Brown, 146 Kan. 7, 68 P. 2d 1105.) Even though it should be held that this trial error could be raised here for the first time we would still hold the evidence was competent. It was all part of the facts and circumstances surrounding the execution of the conveyance and should have been considered by the trial court. (See Bennett v. Humphreys, supra; also, Dyal v. Brunt, 155 Kan. 141, 123 P. 2d 307; and Epperson v. Bennett, supra.) Appellants next argue that the conveyance is not ambiguous and actually conveyed an undivided one-half interest in the tract. By this argument appellants ask us to ignore the second paragraph of the description and to be guided wholly by the first paragraph. To do this would be to refuse to consider all parts of the instrumént, as we are bound to do. (See Bennett v. Humphreys, supra.) There we held: “In the construction of deeds, as well as of wills, the intention of the grantor, as gathered from an examination of the instrument as a whole, is the cardinal consideration.” (Syl. ¶ 1.) See, also, Dyson v. Bux, 84 Kan. 596, 114 Pac. 1092; also, Howe v. Howe, 94 Kan. 67, 145 Pac. 873; 18 C. J. 260, 26 C. J. S. 344; and 16 Am. Jur. 532. Here the only reasonable inference to be drawn from all the surrounding facts and circumstances is that Monroe intended by the conveyance to his sons to convey to them a sufficient interest so they would own the interest their mother owned before her death. There is no evidence to any other effect. The judgment of the trial court in both appeals is affirmed.	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The opinion of the court was delivered by Harvey, C. J.: On April 17, 1946, Norman Allen appeared with his attorney in the district court of Crawford county, Kansas, and entered his plea of guilty to an information which charged him with burglary in the first degree and in a separate count with forcible rape, and was duly sentenced to the state penitentiary upon his plea. He is now serving the sentence in our state penitentiary. He has filed this petition for a writ of habeas corpus, seeking his 'discharge from imprisonment upon two grounds: First, that he was prosecuted under an information filed by the county attorney and not upon an indictment found by the grand jury. This point is not well taken. (See Bailey v. Hudspeth, 164 Kan. 600, 191 P. 2d 894.) • Second, that in the preparation of the journal entry of his plea and sentence our statute (G. S. 1947 Supp. 62-1516) was not complied with in that the journal entry did not set out the sections of the statute under which he was charged and under which he was sentenced. This does not make the sentence void. The statute was enacted to enable anyone interested in his imprisonment to determine definitely and readily the sections of the statute under which he was charged and under which he was sentenced. The omissions of the references to those statutes in the journal entry simply makes it incomplete. The journal entry should be completed as outlined in Wilson v. Hudspeth, No. 37,356, this day decided. The writ prayed for is denied.	[ 48, -20, -3, 29, -118, -31, 42, 28, 64, -77, -26, 83, -19, 94, 0, 121, 115, 107, 85, 121, -52, -73, 115, -61, 114, -5, -7, -108, -77, 95, -74, -12, 78, -78, -118, 85, -90, 10, -125, 28, -114, 5, -87, -48, -63, -64, 48, 47, -18, 15, 49, 31, -13, 42, 22, -62, -119, 44, -54, -81, 88, -79, -101, 31, -33, 54, -93, -122, -106, 37, 84, -82, -72, 17, 0, -20, -77, -122, -122, 116, 111, -87, 45, 102, 98, 33, -107, -5, 40, -119, 14, 118, -99, 38, -110, 64, 99, 37, -105, -99, 115, 84, 35, 122, -12, 44, 125, 110, 15, -50, -68, -111, 79, 124, 10, 121, -29, 33, 0, 112, -59, -90, 92, 87, 112, -69, -114, -80 ]
The opinion of the court was delivered by Parker, J.: This is an appeal from a judgment sustaining an order of the state corporation commission of Kansas, denying an application of Union Pacific Railroad Company for permission to discontinue the operation of certain passenger trains. For convenience and in the interest of brevity the corporation commission will be referred to as the commission and the railroad company as the company throughout the course of portions of this opinion. In November, 1946, the company made application to the commission for authority to discontinue the operation of its motor trains Nos. 531 and 532, over its Solomon branch between Beloit and Salina, Kan. On July 9, 1947, after holding a hearing on such application at Minneapolis, where all interested parties were permitted to adduce evidence, the commission denied the application. Subsequently it denied the company’s application for a rehearing. Thereafter the company petitioned the district court of Dickinson county for a review of the company’s order denying the original application and gave notice of its action in the manner provided by law. Thereupon, as required by statute (G. S. 1935, 66-118d), the secretary of the commission transmitted to the clerk of such district court a certified transcript of all pleadings, applications and proceedings had before the commission and the evidence heard by that body on such hearing together with all orders and decisions made by it with respect thereto. In due time review of the commission’s order came on for trial and in conformity with G. S. 1935, 66-118f, the district court heard the cause upon the issues presented by the evidence adduced before the commission and the record as certified. Based upon such record it found the order refusing the company permission to discontinue its passenger trains was lawful and reasonable and rendered a judgment sustaining it. Thereupon the company perfected this appeal and now specifies that the district court erred (1) in overruling its motion for a new trial, and (2) in rendering judgment holding that the order of the commission under review was lawful and reasonable. Simultaneously with the rendition of its judgment the trial court handed down a memorandum opinion from which springs the primary question presented for appellate consideration. That memorandum is a part of the record and reads as follows: “This is an application presented by the above named applicant to the State Corporation Commission of the State of Kansas for permission to discontinue the operation of motor cars on the Solomon Branch of the applicant’s railroad, and the order, of the Commission denying the application is now before this court for review. The duties of this court in passing upon the questions presented by such a review are confined to a rather narrow scope by the legislature, and revolves itself into the determination of two questions: First, Was the order lawful? Second, Was the order reasonable? “An examination of the record of the proceedings before the Commission would indicate that all the procedural forms prescribed by law have been complied with. This being true the first question must be answered in the affirmative. The order was lawful. “An examination of the record of the proceedings before the Commission discloses that the order was made upon conflicting evidence. Under the narrow limits of the authority which the legislature has conferred upon the courts to deal with the powers vested in the Commission, before this court would be justified in setting aside an order of the Commission, based upon conflicting evidence, it would be necessary for the court to find that there is no substantial evidence upon which to base the order made in this case. There wás substantial evidence in the record upon which the triers of the facts could base the order made'. This court cannot weigh evidence in this sort of review, and having found that there is evidence upon which the order could be based, it follows that the second question must be answered in the affirmative, and that the order was not unreasonable. “It follows that judgment must be for the defendant or respondent, sustaining the order.” Appellant’s claim of error respecting the primary question to which reference has been made relates only to the last two paragraphs of the opinion just quoted. Briefly stated, conceding the finding the commission’s order was lawful because prescribed procedural forms were observed in its rendition is sustained by the record, its contention is that such paragraphs show upon their face the trial court’s decision such order was not unreasonable was predicated upon an erroneous conception of the duty imposed upon it by the statute (G. S. 1935, 66-118d) providing for the review of decisions made by the commission pursuant to the authority conferred upon that body by the provisions of G. S. 1935, 66-117. More specifically it takes the position that in the determination of the review proceeding it was the duty of the district court to weigh the evidence and determine for itself whether under all the facts and circumstances disclosed by the record before it the commission’s order was to be upheld or set aside and that its failure to do so requires a reversal of the judgment. Decision of the issue thus raised necessitates reference to certain provisions of the statute prescribing the duties and authority of the district court upon the trial of appeals from orders of the commission refusing applications of common carriers to discontinue or make changes in existing train service. They read: “. . . Said proceedings for review shall be for the purpose of having the lawfulness or reasonableness of the original order or decision or the order or decision on rehearing inquired into and determined, and the district court hearing said cause shall have the power to vacate or set aside such order or decision on the ground that such order or decision is unlawful or unreasonable. . . . The procedure upon the trial of such proceedings in the district court and upon appeal to the supreme court of this state shall be the same as in other civil actions, except as herein provided. No court of this state shall have power to set aside, modify or vacate any order or decision of the commission, except as herein provided.” (G. S. 1935, 66-118d.) “No new or additional evidence may be introduced upon the trial or any proceedings for review under the provisions of this act, but the cause shall be heard upon the questions of fact and law presented by the evidence and exhibits introduced before the commission and certified by it. . . .” (G. S. 1935, 66-118f.) “If the court upon such hearing shall find such order of the commission under review to be lawful and reasonable, it shall render judgment sustaining said order, . . .” (G. S. 1935, 66-llSj.) “If the court shall find that the order or decision of the public service commission is unlawful or unreasonable in whole or in part and shall vacate or set aside the order or decision in whole or in part, the court shall make findings of fact and conclusions of law, . . .” (G. S. 1935, 66-118k.) Before further consideration is given to appellant’s claim the trial court unduly limited the scope of review contemplated by the statute in the rendition of its judgment, it is well to note that we are not here dealing with a purely administrative order of the commission but one which is judicial in character. That this is true appears from the opinion in Kansas Gas & Electric Co. v. Public Service Com., 122 Kan. 462, 468, 251 Pac. 1097, where it was said in effect that in the exercise of its powers to govern rates and services of public utility companies the lawful scope of the commission’s orders is hedged about by statutory and constitutional guaranties and inhibitions and that its action with respect thereto is therefore judicial rather than administrative in nature. When the sections of the statute heretofore quoted are carefully analyzed, it clearly appears that on review of an order of the commission involving changes in rates and services the district court in which the proceeding is pending (1) has power to vacate or set aside the order on the ground it is unlawful or unreasonable; (2) is required, upon trial of such a proceeding, to hear the cause upon the questions of fact and law presented by the entire record as certified by the commission; and (3) is directed and required to find the order under review is either (a) lawful and reasonable, or (b) unlawful and unreasonable. Definitely, such sections limit the scope of the district court’s authority to the inquiry whether the order issued by the commission is lawful or reasonable. Just as definitely in the exercise of that limited function, we believe the reviewing tribunal is required to base its independent decision upon the facts and circumstances to be gleaned from the entire record and in doing so it may weigh evidence solely for the purpose of determining whether such order is reasonable. To hold otherwise with respect to judicial orders of the commission renders farcical the power and authority vested in the district court under the sections of the statute to which we have referred and completely nullifies the intent and purpose evidenced by the legislature in their enactment. As applied to the instant proceeding the construction we give the statute compels the conclusion appellant’s contention the judgment sustaining the commission’s order was predicated upon an erroneous conception of the duty imposed upon the district court by law must be upheld. From the memorandum opinion there can be no question the trial court considered its duty on appellate review was to uphold the order appealed from if the record disclosed any evidence to sustain it. In our opinion it was required to weigh the evidence and determine whether from all the facts and circumstances disclosed by the record the'commission’s order was reasonable. Its failure to do so deprived the appellant of the full and complete review to which it was entitled and requires the granting of a new trial. In reaching the conclusion just announced we have not failed to consider appellee’s argument that our decisions in Wichita Gas Co. v. Public Service Com., 132 Kan. 459, 295 Pac. 668, and Southern Kansas Stage Lines Co. v. Public Service Comm., 135 Kan. 657, 11 P. 2d 985, are authority for the holding of the trial court that presence in the record of any evidence upon which the commission’s order could be based required the rendition of a judgment sustaining it as not unreasonable. Both decisions deal with orders, adminis trative in nature, pertaining to the issuance of certificates of convenience and necessity and are not to be regarded as decisive in determining the power and authority conferred or the duty imposed upon the district court by the legislature in the disposition of appeals from orders which can be classified as judicial in character. We are not presently concerned with appeals from administrative orders and therefore not now required to reexamine the rule announced in those decisions. Since the cause must be remanded for a new trial appellant’s contention with respect to the responsibility of this court in the disposition of appeals from judgments of the trial court sustaining or setting aside orders of the commission need not be now determined. The judgment is reversed with directions to grant a new trial. Cowan, J., not participating.	[ -76, -22, -11, 29, 10, 98, -80, 18, 113, -79, -25, 83, -87, -38, -107, 127, -18, 61, -44, 106, -27, -77, 71, -22, 83, -13, 123, -51, -77, 88, -28, -58, 77, 48, 42, 85, -122, 64, -59, 28, -114, 22, -87, -23, -103, -128, -76, 110, 50, 15, 17, -113, -13, 40, 24, -45, -87, 60, -5, -23, -103, -8, -70, -57, 125, 6, 35, 4, -98, -91, 112, 63, -104, 48, 8, -20, 87, -90, -106, -12, 33, -5, 8, -82, 99, 35, 61, -17, -36, -104, 14, 59, 13, -26, -74, 24, 99, 97, -106, -99, 85, 18, 7, -4, -18, 5, 31, 108, 3, -118, -78, -77, 95, 103, -102, 7, -21, -95, 18, 100, -52, -78, 95, 70, 50, 27, -50, -68 ]
The opinion of the court was delivered by Wedell, J.: This action involved the appointment of trustees named in a will. The probate court, and the district court on appeal, refused to appoint the trustees designated, and'one of'such trustees, Frances T. (Kerrigan) Newport, has appealed. John F. Kerrigan, the testator, moved from Hiawatha, Brown county, Kansas, to Tulsa, Olda., in 1908. He engaged in the practice of law at Tulsa and amassed a substantial estate. He remained at Tulsa until October, 1943, when by reason of his ill health he and his wife returned to reside at Hiawatha. He died there December 30, 1943. In his will he named his wife, Florence, and Edward J. Fleming, as executors. The latter continued to reside in Oklahoma and the widow served as executrix. The testator designated two Oklahoma residents, the First National Bank and Trust Compány of Tulsa, a national banking association, and Frances T. (Kerrigan) Newport, the widow of the testator’s deceased son, as co-trustees. For brevity we shall refer to the first-named trustee as the trust company. The will provided the trust estate was to be administered by the co-trustees after such portion of the- estate as was not included in the trust was fully administered by the executors. The will also provided that in 1955 John T. Kerrigan, a son of Frances Newport, was to be substituted for his mother as a co-trustee with the trust company. The will further provided if Frances Newport or John T. Kerrigan were unable, for any reason, to act as a co-trustee the trust company was vested with full power to act as sole trustee. The trust company was required to file a bond as trustee and the terms of its compensation were fixed by the will. The other named co-trustees were not required to make bond and were to receive no compensation. The matter of appointing trustees came before the probate court and later before the district court after the primary estate had been administered in the probate court. The testator’s widow, the executrix, took the position that neither the trust company nor Frances was qualified to act as trustee, that a resident of Brown county should be appointed as trustee, but that if Frances Newport were appointed then Roy V. Nelson, an experienced attorney of Brown county, should be appointed as a co-trustee. Robert M. Finley, the guardian ad litem of the two minor children of Frances T. Newport, contended neither of the nonresident trustees was qualified to act and that a resident of Brown county should be appointed to serve as trustee. The appellant, Frances Newport, contended both of the trustees designated in the will should be appointed, that in any event they should both be appointed as trustees insofar as the Oklahoma properties were concerned, and if the trust company could not qualify then she should be appointed alone to have full power to manage and settle the trust estate. Manifestly these contentions required interpretation of the will and an application of Kansas law pertaining to the administration of the trust estate. We have not stated all provisions of the will pertaining to the trust for the reason, as will presently appear, we are not immediately concerned with the merit of the court’s interpretation of the will. The district court concluded that under the provisions of section 131, chapter 180, Laws of 1939,- the nonresident trust company was disqualified to serve in the capacity designated by the will. (G. S. 1945 Supp. 59-1701.) We have so held. (In re Estate of Lowe, 155 Kan. 679, 127 P. 2d 512.) The district court denied the application of appellant to appoint her as sole trustee. The court concluded (1) it would violate the express desires and wishes of the testator to appoint Frances Newport as the sole trustee in the event the trust company could .not act and that it was the testator’s intention Frances T. Newport and her son, John T. Kerrigan, should act as co-trustees with the trust company and not otherwise; (2) Frances T. Newport was not qualified by training and experience to manage, operate and control the trust estate; and (3) the probate court, under the provisions of G. S. 1945 Supp. 59-301, had jurisdiction and power to substitute and appoint Roy Y. Nelson, a resident of Brown county, as the sole trustee to carry out the intent and purpose of the testator with respect to the trust estate. We are first confronted with the contention of appellees, the executor, the guardian ad litem and Roy V. Nelson, trustee, that the appeal presents nothing for our review and must be dismissed. They direct our attention to the fact there was no appeal from the final judgment rendered December 26, 1946, but only an appeal on May 9, 1947, from the order of March 18, 1947, overruling appellant’s motion for a new trial. The appeal was perfected more than two months after rendition of judgment. That, of course, was too late to appeal from the judgment. (G. S. 1947 Supp. 60-3309.) It was not too late to appeal from the order overruling the motion for a new trial. The appeal is, however, limited to matters presented in the motion for a new trial. (McCarty v. McCarty, 163 Kan. 427, 182 P. 2d 881.) If the motion for a new trial presented no trial errors but only legal questions inherent in the judgment the appeal was too late. (Jackson County Comm’rs v. Commission of Revenue and Taxation, 156 Kan. 585, 134 P. 2d 657; McCarty v. McCarty, supra.) Obviously the time for appeal from rulings on purely legal questions inherent in a judgment cannot be extended by merely filing a motion for a new trial. (Achenbach v. Baker, 157 Kan. 292, 139 P. 2d 407.) Under such circumstances the motion constitutes nothing more than a request to the trial court to reconsider its rulings on questions of law. (Achenbach v. Baker, supra; Palmer v. Helmer, 159 Kan. 647, 157 P. 2d 531.) In the instant case the first above-mentioned ruling of the district court, based on its interpretation of the will, -constitutes purely a ruling on a question of law. No motion for a new trial was necessary or proper with respect to that ruling. Whether the ruling was proper we need not, and cannot, decide in the absence of a timely appeal from the judgment. That ruling must therefore stand undisturbed. It completely eliminates appellant from serving as a trustee. In view of that ruling it -is wholly immaterial whether she is qualified by training and experience to act as a trustee. It follows if this court could review the separate question of her qualifications to act and concluded she was qualified we could not make the decision effective in the absence of an appeal from the judgment which excludes her from serving as a trustee irrespective of her qualifications. Appellant challenges the constitutionality of G. S. 1947 Supp. 59-1701. That contention likewise presents no trial error but purely a legal question inherent in the judgment and is not here for review. The appeal must be dismissed. It is so ordered. Cowan, J., not participating.	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The opinion of the court was delivered by Harvey, C. J.: This is a proceeding in habeas corpus by an inmate of our state penitentiary. He was charged, tried by a jury and found guilty of murder in the first degree. The jury recommended that his punishment should be confinement for life in the state penitentiary. His motion for a new trial was overruled and he was duly sentenced to life imprisonment on February 11,1943. He seeks his release from imprisonment upon two grounds: First, that he was prosecuted upon an information filed by the county attorney instead of an indictment returned by the grand jury. This point has no merit. (See Bailey v. Hudspeth, 164 Kan. 600, 191 P. 2d 894.) Second, he contends that he was improperly represented by counsel at his trial. Upon this point we treat all the allegations of fact contained in his verified petition and in his verified statement of facts subsequently filed as his deposition. Respondent has filed the deposition of his trial attorney and of the district judge. In order that this matter might be fairly heard this court appointed William C. Karnazes of Kansas City, a capable member of the bar of this court, as his attorney, who consulted with the petitioner, prepared a brief and argued the matter on his behalf. The record before us discloses that on or about the 21st day of September, 1942, the petitioner was arrested, charged with the murder of George Altop; that he was taken before the judge of the city court, sitting as a magistrate, and a date fixed for his preliminary hearing; that he promptly employed as his attorney Paul L. Thomas, who had been actively engaged in the practice of law since his admission to the bar in June, 1936. The attorney represented him at the preliminary examination, which was held on October 27, and employed a court reporter, who took the testimony at that hearing. As a result of the hearing the magistrate found the crime charged to have been committed and had probable cause to believe that it was committed by defendant. He was bound over to the district court for trial and his bond fixed at $5,000. His attorney went into district court and moved that the bond be reduced to $3,000, which motion was sustained and the bond given. On December 3, 1942, the county attorney filed an information in the district court duly charging defendant with murder in the first degree. The case came on for trial on January 11, 1943, with the result as above stated. The petitioner charges that his attorney did not talk with him or prepare his defense before the trial. This is flatly denied by his attorney, who states that he conferred with defendant several times before the preliminary examination and with both the defendant and his wife repeatedly after the preliminary examination and before the trial; that he personally interviewed witnesses and made every possible preparation for the trial. The petitioner complains that the attorney did not object to his going to trial upon an information filed by the county attorney and without his being indicted by a grand jury. If so, that is to his credit, for no reputable, well-informed attorney would have made such an objection in view of the fact that this court, on at least- five occasions, has held that prosecution by an information was proper. The cases are set out in the opinion in the Bailey case, supra. He complains that the attorney allowed the trial court to instruct the jury on murder in the first degree and nothing else. This statement is inaccurate. This court has been supplied with a copy of the instructions, which disclose that the court instructed the jury on first-degree murder, second-degree murder, manslaughter in the third degree, manslaughter in the fourth degree, also on justifiable homicide and on excusable homicide, and upon acquittal. Appropriate forms of verdict were submitted to the jury. He complains that the attorney allowed the trial court to instruct the jury that there was no doubt in the judge’s mind that the defendant was guilty or he would have taken the witness stand in his own behalf. The statement is inaccurate. On this point the court instructed the jury as follows: “Under the laws of the State of Kansas, the defendant is made a competent witness to testify in his own behalf and he may do so if he chooses. If he does not choose so to do, he may refuse to testify. As before stated herein, the burden of proving him guilty as charged rests upon the state to prove by evidence beyond a reasonable doubt, and the defendant has a right to stand upon this presumption of innocence, until the evidence of the state proves otherwise. You are not to presume that he is guilty because he does not testify, since such is his right, and you must not allow this fact to create any prejudice against him.” This instruction is in harmony with our statute (G. S. 1935, 62-1420). It is an instruction given in all jury trials in criminal cases where the defendant does not take the witness stand, and is regarded as favorable to the defendant inasmuch as the jury is told not to allow the fact that he did not testify to be considered against him. The petitioner further contends that his attorney let the court set aside the record of his preliminary hearing and keep that evidence from the jury; that he allowed the prosecutor to take evidence over the telephone and then present it to the jury; that he allowed pictures to be given to the jury as evidence which were false and fictitious, and would not explain the true facts about the pictures afterwards, and that he did not allow defendant to call material witnesses to explain the truth of the matters to the jury. All of these matters are flatly denied by the affidavit of his attorney. In any event, they are trial errors which could be raised only by appeal. Having carefully examined the evidence the court finds that none of the charges made by the petitioner against the trial judge or his attorney is sustained by the evidence. The record before us indicates that the defendant had a fair trial; that the attorney zealously represented him throughout, and that the petitioner made no complaint of not being properly represented at any time until he filed this proceeding. The writ prayed for is denied.	[ 16, -18, -35, 31, 43, -30, 26, -104, 51, -77, 100, 115, -23, 79, 1, 97, 91, 37, 84, 121, -60, -105, 119, -63, -106, -5, -39, -47, -77, -39, -74, -43, 73, -16, 10, 81, -26, 74, 99, -106, -114, 1, -87, -48, -46, -128, 48, 45, 30, 14, -75, -98, -5, 42, 30, -53, -55, 44, -54, -81, 80, -103, -7, -97, 95, 20, -93, -122, -100, 7, 80, 62, -104, 49, 1, -20, -13, -106, -122, 116, 111, -119, 44, 102, 66, 33, -43, -85, -88, -119, 15, -73, -115, -89, 24, 88, 72, 68, -106, -99, 123, 84, 43, 124, -11, 36, 117, 44, 11, -49, -72, -111, 79, 60, -114, -101, -21, 33, 32, 112, -113, -30, 92, 103, 121, -101, -81, -108 ]
The opinion of the court was delivered by Harvey, C. J.; These eight actions were brought by individual owners of property situated in the flood valley of the Whitewater river against the city of Augusta, a city of the second class, with a population of about 4,000, to recover damages alleged to have resulted to their property by the city building and maintaining a levee to protect the city and its inhabitants from floods. The attached plat, Appendix "A,” shows the location of the city, the levee and the property of the respective plaintiffs alleged to have been damaged. The city of Augusta is situated for the most part in the east half of sections 22 and 27, as shown on the plat, in an area which might be described as within a Y formed by the Walnut and Whitewater rivers. The source of the Walnut is some thirty or forty miles to the north and northeast of the city and it flows in a crooked course to the south and southwest, passing to the east and south of the city. The Whitewater river has its source about the same distance to the north and northwest of the city and flows southward in a crooked course to the southeast into the Walnut river, perhaps a half mile south of the city. It passes the city on the west. In times of heavy rains and high waters these rivers overflow their normal banks frequently, at irregular intervals, spreading out over the farm lands of the flood valleys of the rivers, including a substantial part of the city of Augusta. . Beginning shortly prior to June, 1936, the city of Augusta, proceeding under our statute (G. S. 1935, ch. 12, §§ 635 to 646), constructed a levee on the west, south and east sides of the city to protect the city and its inhabitants, and the public and private property therein, from the floodwaters of those rivers. The levee was about three miles in length, constructed mostly of earth, about fifty feet wide at the bottom, ten feet wide at the top, and in places as much as twelve or fourteen feet high. It began at the northwest corner of the city, extended southwest almost to the west line of the section, thence south, all on section 22 to near the south end of the city, thence around the south end and north to about the south line of section 22. None of the real estate or other property of any of the plaintiffs was acquired or taken possession of by the city. The sections of the statute under which the city acted, as applicable here, may be summarized as follows (we use only the section numbers): By section 635 any city in or near which there is a nonnavigable natural watercourse, the overflow from which in event of high water is liable to cause injury to public or-private property within the city, may acquire, by eminent domain or purchase, within or without the city for a distance of five miles, the lands and easements necessary to construct levees and acquire the necessary outlets and cause all necessary work to be done to protect the city and public and private property therein from floods and damage by the overflow of the natural watercourse. By section 636 the project is initiated by resolution passed by the governing body of the city declaring it necessary, for the public good and convenience, that the property described in the resolution be -protected from overflows from the watercourse. It shall have a competent engineer to make the survey, plans and estimate of the cost, and to examine the property liable to be damaged by the overflow of the watercourse, and make a report in duplicate, one of which shall be sent to the public utilities commission. Section 637 requires the public utilities commission to refer the report to their engineer, who shall examine the same, and if necessary make a personal inspection and report his findings to the commission, which shall make a finding, approving or disapproving the report of the engineer, and certify the same to the city. Section 638 pertains to bids and contract for the work, which are not here involved. Section 639 requires the governing body of the city to appoint three disinterested householders of the city “to assess all damages to any and all property that will be injured or damaged by reason of said improvement,” and in fixing the amount of the damages they may take into consideration benefits, if any. By section 640 the governing body of the city, after receiving the report of 'the appraisers,' shall fix a time and place for the hearing of all objections to the report and give notice thereof.. Section 641 pertains to the conduct of the hearing and the action of the governing body thereon. Section 642 reads: “That all objections to the report of said appraisers must be in-writing and filed with the city clerk of said city forty-eight hours prior to the time fixed for the hearing of the same.” Section 643 provides for an appeal by anyone who has filed objections and had, a hearing thereon, and feels aggrieved at the decision of the governing body of the city, to the district court by filing a prescribed bond with the city clerk, who shall then make and file a transcript of the hearing with the clerk of the district court. The court then has jurisdiction of the cause and shall hear all competent evidence as to benefits received and damages sustained for the improvement. “All objections that shall be filed shall be heard and determined by said court as one proceeding,” and upon the rendition of the judgment the clerk of the court shall certify the decision to the governing body of the city. ¡Section 644 authorizes the governing body to issue internal improvement bonds “to provide for the payment of the costs of said improvements and the damages occasioned by reason thereof, . . .” Section 645 pertains to special benefit assessments, and section 646 to bond limitations, neither of which is pertinent here. Without stating details it may be said the record discloses the city proceeded in harmony with the statute as above outlined. Appraisers were appointed, as required by section 639, to assess damages by reason of the construction of the improvement. They reported, “That there will result damages in the amount of $250 to Lots 5 and 6, in Block 30, of the Original townsite of the city of Augusta, Kan. That there will not be other damage of a definite and ascertaining nature.” The city set a date for hearing and gave notice, as required by section 640, and within the time provided by section 642 four owners of real property filed written objections to the report of the appraisers together with their claims of damages. Ira T. Foster, as the owner of the land shown in the name of Ira M. Foster on the plat, filed his objections, which in short alleged that the construction of the levee would damage his property in the sum of $14,000. M. S. Loomis filed his objections in which he alleged he was the owner of the land now shown on the plat in his name, and also that shown on the plat in the name of L. W. Loomis, and the east half of the northwest quarter of section 21, now shown on the plat in the name of M. L. Loomis. He alleged the land was of the value of $42,000, exclusive of mineral rights; that it was suitable and desirable for agricultural purposes and had potential value for suburban acreage and residential purposes, and that by the construction of the dike his land would suffer damages and be depreciated to the amount of $18,000. Catherine Carter filed her objections in which she alleged she was the owner of eighty acres shown on the plat in her name; that it was of the reasonable value of $12,000, exclusive of mineral rights, and that it would be damaged in the sum of $10,000 by the construction of the levee. Lawrence L. Wilson filed his objections in which he alleged he was the owner of the eighty acres of land shown in his name on the plat and that it would be damaged in the sum of $10,000 by the construction of the levee. Each of the objectors objected to the report of the appraisers and asked that they be allowed damages in the amounts claimed. The governing body conducted a hearing upon the appraisers’ report and the objections thereto, as provided by section 641, and disallowed the claims of the objectors and approved the report of the appraisers. The objectors then appealed to the district court. Thereupon, by a showing deemed by the court to be proper, Ira M. Foster was substituted for Ira T. Foster and the proceedings continued thereafter in his name. The district court was asked to and did determine questions of law in advance of the trial of the appeal upon its merits. The city felt aggrieved by the rulings of law of the trial court and appealed to this court, where the claims of the objectors were heard and determined in one opinion under the title of Loomis v. City of Augusta, 151 Kan. 343, 99 P. 2d 988. That appeal was presented to the court as an appeal in an eminent domain proceeding, and the court held: “In a condemnation proceeding under section 12-639 [G. S. 1935], where it appeared that there had been no actual appropriation of the land of the claimants, and no actual invasion of such land or injuries thereto, the statute construed, and held not to allow recovery for prospective invasions and injuries which .are purely speculative in character.” (Syl. ¶ 1.) In the argument there was a discussion as to whether the claimants, by appealing from the appraisement, had elected whatever remedy they might have at any time with respect to damages from the construction of the levee. Respecting that the court held: “In order for a party to be concluded by an election between two inconsistent remedies both must in fact be open to him. The pursuit of a remedy which he supposes he possesses, but which in fact has no existence, is not an election between remedies, but a mistake as to what remedy he has, and will not prevent his subsequent recourse to whatever remedial right was originally available.” (Emphasis supplied.) (Syl. ¶ 2.) Nothing further was done in the matter until the above entitled actions were filed in the district court on various dates from May 16 to May 25,1945. In each of the cases the petition was framed as a common-law action for damages. The respective plaintiffs alleged the construction of a levee and that on or about the 21st day of April, 1944, .and for numerous days thereafter heavy rainstorms occurred in and near the city of Augusta and on the property north, northeast and northwest thereof; that during the rains the overflows from the rivers and floodwaters were unable to escape in their natural course and were thrown upon and impounded upon the lands which plaintiffs owned or operated, to their damage, in sums stated, aggregating approximately $65,000. To the respective petitions defendant filed a lengthy motion to make more definite and certain, to strike, and to separately state and number, and to elect. These were presented to the court and overruled. Defendant then demurred to each petition upon several grounds. These demurrers were overruled and defendant has appealed. In this court counsel for appellant complain that the trial court did not sustain its motion to make definite and certain, etc., and of the overruling of its demurrer to the respective petitions. They argue, among other things, that in constructing the levee the city was acting in its governmental capacity in complete accord with a valid statute; that plaintiffs’ actions are in tort, and that there is no constitutional or statutory provision which makes the city liable for damages in actions such as those brought by plaintiffs. Counsel for plaintiffs, as appellees here, in answer to the argument of counsel for appellant, contend the actions are not in tort, but are governed by the law of eminent domain; that the flooding of private property by a public improvement amounts to a “taking” within the meaning of the law of eminent domain, and that they are entitled to recover for the loss or injury sustained in a common- law action for damages. They predicate this doctrine upon Pumpelly v. Green Bay Company, 13 Wall. (80 U. S.) 166, 20 L. Ed. 557, and upon United States v. Lynah, 188 U. S. 445, 47 L. Ed. 539, 23 S. Ct. 349. We have explored this argument and find it not to be well taken. Each of the cases relied upon so heavily has been so nearly overruled or limited in its application as to be ineffective for the purpose counsel seek to use it. (Transportation Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336.) More than that, the Lynah case grew out of a federal statute and was decided under federal law. In exercising the power of eminent domain the federal government uses its own rules with respect to property and compensation. (Kohl v. United States, 91 U. S. 367, 374, 23 L. Ed. 449; State of Nebraska v. United States, 164 F. 2d 866.) These may or may not be the same as the rules applicable in the state where the property is situated. The states may have different rules and change them from time to time. See Pennsylvania Railroad Co. v. Miller, 132 U. S. 75, 33 L. Ed. 267, 10 S. Ct. 34; Chicago v. Taylor, 125 U. S. 161, 31 L. Ed. 638, 8 S. Ct. 820.) Eminent domain is the inherent power of the state to take private property for public use. With that is the duty of the state to pay the owner of the private property for that taken. What constitutes a “taking,” and whether the state shall pay for something more than the property taken, is a matter of state law. In this state we have no constitutional limitations upon the taking of private property for public use except that contained in section 4 of article 12, which is not applicable here. A study of the framing of our constitution leads to the conclusion that this was done intentionally. The result is that our legislature is free (except as limited by art. 12, § 4) to determine what property shall be taken for public use and what is meant by the word “taking,” and what shall be compensated for by reason of the taking. A study of our statutes and decisions discloses the word “take” or “taken,” as used in our law of eminent domain, means the acquiring of possession and the right of possession and control of tangible property to the exclusion of the former owner, with such title in fee or easement as the statute under which the proceeding is had provides. With respect to payment, the rule of our decisions is that "when a party exercising the right of eminent domain takes the whole of one’s property it pays the full price therefor. When it takes only a part of the owner’s property it pays the full price for the part taken and such damages as result to the owner’s property by reason of the fact that a part of it is taken. Owners of other property nearby or adjoining that which is taken are not entitled to receive any compensation, though in fact they may sustain some loss or injury, such being regarded as consequential and damnum absque injuria. But we shall not pursue the matter further. After having examined the authorities cited by counsel on both sides, and many suggested by those cited, a tentative opinion was prepared in these cases. On considering this the court concluded that the rights of the respective parties may best be determined by an examination of the statute under which the levee was constructed and our former decision in Loomis v. City of Augusta, supra. Analyzing the statute, it obviously gives a city authority to protect the city, its inhabitants, and public and private property within the city, from floodwaters or waters which overflow from natural watercourses which are not navigable. Section 635 authorizes such a city to “acquire, by condemnation and eminent domain, or purchase, . . . the land and easements necessary to construct . . . levees . . .” In these cases the city had acquired by purchase all of the land and easements upon which to construct the levee except two city lots, found to be of the value of $250. Had the city purchased those lots, at whatever cost, the city would not have been relieved from the provisions of section 639, which requires it to “appoint three disinterested householders of the said city to assess all damages to any and all property that will be injured or damaged by reason of said improvement.” Such injury or damage is not limited to the land or easements upon which the levee was constructed. It was necessary that the procedure with respect to that appointment and the giving of notice and hearing of claims presented should be followed. The procedure was followed. Within the time fixed by section 642 four persons filed written objections and presented claims: Ira T. Foster, whose successor, Ira M. Foster, is the plaintiff in 36,915; Lawrence L. Wilson, plaintiff in 36,916; Catherine Carter, plaintiff in 36,919, and M. S. Loomis, plaintiff in 36,921. Notice was given for the hearing of objections to the appraisers’ report, as provided by section 640, and a hearing was had thereon, as provided by section 641. The objections were overruled and the claims denied by the governing body of the city. The claimants appealed to the district court. There all the claims should have been considered as one case and heard by the court and the judgment of the court certified to the city clerk. Hence, as we examine the statutes now, we think those claims should have been heard and determined as provided by section 643. That view is fortified by section 644, which provides that the city may issue bonds for the cost of the improvements and the damages occasioned by reason thereof. We think it clear that the statute contemplates the hearing of the objections to the report of the appraisers and the determination of any damages of the character mentioned in section 639 before the bonds were issued. We take note of the fact that the damages claimed by the objectors, filed with the city clerk to the report of the appraisers, aggregate $52,000. We note, also, that some of the land alleged to have been damaged is situated a mile or more to the north and west of any part of the levee. If damages claimed by those who filed objections had substantial merit, a question upon which we express no view, persons owning land to the south of those who- made objections for a mile or more south of the levee, and those owning lands south and east of the levee, could have made similar claims, the aggregate of all of which claims could well have amounted to several times the amount of damages claimed by the objectors. Certainly, all such claims for damages, if made, as required by section 642, might have been so great that the city would have felt it necessary to abandon the project. In any event the city was entitled to know its liability, if any, for such damages so the amount thereof could be included in its bonds issued, as required by section 644. This is the only way the statute provides for the payment of such damages and the costs of the improvement. Reexamining our opinion in Loomis v. City of Augusta, supra, we think it is inaccurate in three respects: First, in treating the matter as being governed by the law of eminent domain. Under section 635 eminent domain- was to be used, if necessary, only to acquire the lands and easements necessary to construct a levee. Section 639 provides for considering the class of claims not recoverable in eminent domain. Second, in not permitting the objectors to have a hearing in the district court upon their appeal taken under section 643. Third, in determining questions of law the trial court had held that each separate objector was entitled to a separate trial by jury in district court. The judgment of the trial court in that respect should have been reversed with directions for all of the appeals to the district court to be heard as one case by the court, as provided by section 643. No jury trial was authorized by the statute. In these respects the opinion is disapproved. The opinion did leave the remedy to the.objectors open by holding that a decision on the above point would not prevent their subsequent recourse “to whatever remedial right was originally available.” The remedial rights of the objectors originally available were to have their objections heard on appeal by the district court. That right should not be denied now. Their objections and claims were for permanent damages to their real property by reason of the construction of the levee. Persons entitled to be heard are those who made the objections within the time authorized by section 642. There is nothing in the statute which makes the city liable in damages to the land, improvements or crops, or farm machinery resulting from a flood some years after the levee was constructed. In their respective petitions plaintiffs alleged the city left openings in the levee at Highway No. 54 and at the tracks of the St. Louis and San Francisco Railroad Company which were filled with sand bags at the time of the flood. When the case was here before in Loomis v. City of Augusta, supra, the abstracts disclosed that the trial court treated the levee as a continuous structure. Nothing was said in the abstracts or briefs about any openings being left. Both the trial court and this court treated the levee as a continuous structure. Plaintiffs were not damaged by the fact that those openings were left to be filled at the time of floods. We do not take it into account here. The right to claim and receive damages arising from the construction of the levee accrued to the owners of the real property at that time and not to subsequent owners. In view of what we have said the cases before us should be disposed of as follows: In case No. 36,915 the judgment of the trial court should be affirmed with directions that the plaintiff amend his petition to conform to our interpretation of the statute and of the opinion in Loomis v. City of Augusta, supra. In this case the objection and claim for damages was filed with the city clerk by Ira T. Foster, who appealed to the district court, where the present plaintiff was substituted conditioned that on the trial of the case he will be required to prove that he acquired the claim either by assignment or gift from Ira T. Foster (p. 42 of abstract in Loomis v. City of Augusta, supra). In case No. 36,916 the judgment should be affirmed with directions that plaintiff amend his petition to conform to our interpreta tion of the statute and of the opinion in Loomis v. City of Augusta, supra. In case No. 36,918 the judgment should be affirmed with directions that plaintiff amend tier petition to conform to our interpretation of the statute and of the opinion in Loomis v. City of Augusta, supra. In case No. 36,921 the judgment of the trial court should be affirmed with directions that plaintiff amend his petition to conform to our interpretation of the statute and the opinion in Loomis v. City of Augusta, supra, and he may include therein the property described in his objection and claim for damages originally filed with the city clerk. It appears that on November 5, 1942, a part of this land was conveyed to L. W. Loomis and part of it conveyed to M. L. Loomis. The plaintiff in this action may make such settlement with those grantees as may be proper between them. The plaintiffs in cases Nos. 36,917, 36,919, 36,920 and 36,922, not having filed claims with the city clerk, as provided by section 642, the judgment of the trial court should be reversed with directions to sustain the demurrer to the petition and to dismiss the action, since the right to recover is statutory. It is so ordered. Hoch, J. (concurring in result, but dissenting in part from statements made in the opinion): I agree with the result reached in this case and in large part with what is said in the opinion. I concur in the conclusion that in Loomis v. City of Augusta, 151 Kan. 343, 99 P. 2d 988, we incorrectly construed the statute (G. S. 1935, ch. 12, ¶¶ 635 to 646) and that it contemplates recovery for the class of claims here' involved. Also, that since a statutory remedy had been made available to them, the claimants were required to observe the procedural steps provided in the statute and that those who did not do so forfeited their right to be heard, under the statute. The construction now given to the statute provides the basis for the disposition made of the instant appeals. But the opinion goes further and discusses the question of “taking,” under the constitutional provision relating thereto, and also questions relating to condemnation under eminent domain proceedings and common-law rights incident thereto. While the statements may not be regarded as essential in the instant decisions, I feel impelled to record here that I am not prepared to say that there can be no “taking” in the constitutional sense except as to property the title of which is acquired under eminent domain. And more particularly am I not willing to say now that in the absence of specific statutory provision therefor, “owners of other property nearby or adjoining that which is taken (by condemnation under eminent domain) are not entitled to receive any compensation though in fact they may sustain some loss or injury, such being regarded as consequential and damnum absque injuria.” I am not unmindful of the many cases in which recovery has been denied for damages denominated “consequential.” Without quibbling as to the appropriateness of the term “consequential” as used in some cases, I think it may fairly be said that such cases relate in most instances to damages incidental and more or less remote in character, as for example, the added inconvenience for ingress and egress resulting to other property owners. But where land is substantially damaged directly as the planned or inevitable result of a project such as flood control or diversion, I do not subscribe to a broad and unqualified rule that in no case can there be recovery in the absence of a statute specifically providing therefor. Possibly I read too broadly some statements made in the opinion. In any event I prefer, in dealing with such questions, to await situations where their determination is required. I am authorized to say that Mr. Justice Wedell concurs in these views.	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The opinion of the court was delivered by Thiele, J.: Defendant was convicted of the offense of murder in the first degree and was thereafter sentenced as hereafter set forth. From the judgment of the trial court she duly perfected her appeal to this court, and thereafter filed her motion that this court fix and allow bail for her. ’ The" questions whether defendant is entitled to bail, and whether her application therefor was filed in time, being of importance, this court set the motion for hearing and the matters are submitted on oral arguments made and written briefs filed. The first question is whether defendant is entitled to bail. If that question be answered in the negative, no question remains as to whether the application was timely made. The journal entry of judgment discloses that as the result of a trial which commenced on March 8, 1948, the jury on March 12, 1948, returned its verdict that defendant was guilty of murder in the first degree; that time was fixed for a motion for a new trial which was heard by the trial court and denied on May 5, 1948; that on that date it w,as adjudged that defendant, for the crime of murder in the first degree of which the jury had found her guilty as charged in the information, be sentenced to be committed and confined in the state industrial farm for women, at Lansing, Kan., until discharged in due course of law; that defendant then filed her application for stay of sentence and execution and asked that court to allow and fix bail; that the court found and ordered that bail be denied and that execution of the sentence and judgment be stayed pending appeal; and that defendant then filed due notice of appeal to the supreme court, duly acknowledged, ordered a transcript and gave notice of her intention to apply to the supreme court for bail pending appeal. Under date of May 13, 1948, there were filed in the office of the clerk of the supreme court copies of the journal entry of judgment, of the notice of appeal and proof of service thereof and of the order for transcript. Thereafter and on May 24, 1948, defendant filed in this court her written, verified application, asking the court to fix and allow bail to her until the final disposition of her case. In this motion it is stated that it was stipulated between counsel for the state and for the defendant, with the consent of the trial court, that the penalty would not be submitted to the jury and that in case of conviction of murder in the first degree the penalty of death would not be inflicted and no penalty greater than life imprisonment would be included in the sentence, and that the state announced to the jury it was not asking a penalty of death. The state makes no contention that the statement is not correct. The gist of defendant’s contention that she is entitled to bail is that notwithstanding she was charged in the information with murder in the first degree under which the death penalty could have been assessed, in view of the stipulation as to the death penalty, and of the subsequent verdict in which the death penalty was not assessed, and of the sentence of the court on the verdict, under provisions of our constitution and statutes later mentioned, she is now entitled to bail as a matter of right. Our constitutional provision' respecting bail is section 9 of the bill of lights of our state constitution. Only the first sentence is of present importance and reads: “All persons shall be bailable by. sufficient sureties excépt for capital offenses, where proof is evident or the presumption great.” We note the following chronology of statutes: 1. Under G. S. 1868, chapter 31, section 8, persons convicted of murder were sentenced to death. - 2. Under G. S. 1868, chapter 82, section 53, “Persons charged with an offense punishable with death, shall not be admitted to bail, when the proof is evident or the presumption great; . . .” 3. Under G. S. 1868, chapter 82, section 134, “All offenses are bailable by sufficient sureties, except murder, when the proof is evident or the presumption great.” This section has never been amended and now appears as G. S. 1935, 62-1206. 4. By Laws 1907, chapter 188, section 1, the statute mentioned at 1 above was amended in such.manner as to abolish the death penalty, and later appeared as R. S. 1923, 21-403. 5. By Laws 1911, chapter 233, section 1, the statute mentioned at 2 above was amended to read, “Persons charged with the crime of murder in the first degree shall not be admitted to bail,” no change otherwise being made. It now appears as G. S. 1935, 62-619. 6. R. S. 1923, 21-403, referred to in 4 above, was amended by Laws 1935, chapter 154, section 1, in such manner as to reestablish the death penalty for murder in the first degree, the amended statute appearing as G. S. 1935, 21-403. 7. A further amendment of the last-mentioned statute was made by Laws 1937, chapter 210, section 1. It appears as G. S. 1947 Supp., 21-403, and reads, in part: “Every person convicted of murder in the first degree shall be punished by death, or by confinement and hard labor in the penitentiary of the state of Kansas for life. If there is a jury trial the jury shall determine which punishment shall be inflicted.” 8. We note also the provision that women convicted of offenses against the criminal laws of this state shall be sentenced to the state industrial farm for women. (See G. S. 1935, 76-2505.) Our code of criminal procedure dealing with appeals after conviction of a felony (G. S. 1947 Supp., 62-1724) provides that, “If defendant seeks stay of execution of the sentence, or release from custody, or both, pending his appeal, he shall serve notice of his intention to appeal ...” and “On the application of defendant the supreme court, . . . shall order execution of the sentence stayed, and ij the offense is bailable after conviction shall fix the amount of the bond . . (Italics inserted.) The above statute is section 3 of Laws 1937, chapter 274. Reference to the session laws will disclose that by section 6 eight former sections of the code of criminal procedure dealing with ?j peals, bail and similar matters, were repealed. Defendant directs our attention to the provision of our bill of rights quoted above, and to In re Schneck, 78 Kan, 207, 96 Pac. 43; In re Truskett, 84 Kan. 869, 115 Pac. 575; and In re Ball, 106 Kan. 536, 188 Pac. 424, 8 A. L. R. 1348; as well as to Walker v. State, 137 Ark. 402, 209 S. W. 86, 3 A. L. R. 968, and argues that she is entitled to bail as a matter of right. Before discussing these cases we note the state’s contention that the provision of the bill of rights refers to bail prior to conviction and not afterward, directing our attention to 8 C. J. S. 68, 6 Am. Jur. 61, and to Ex parte Herndon, 18 Ok. Cr. Rep. 68, 192 Pac. 820, 19 A. L. R. 804, and to Ex parte Halsey, 124 Ohio St. 318, 178 N. E. 271, 77 A. L. R. 1232, and to cases cited in the annotations in 19 A. L. R. 807 and 77 A. L. R. 1235, all of which support the general proposition that a constitutional provision that all persons shall be bailable except for capital offenses where the proof is evident or the presumption is great, does not confer a right to bail pending appeal from a conviction. Defendant, however, directs our attention to Walker v. State, supra, where the supreme court of Arkansas held that one sentenced to life imprisonment upon recommendation of the jury upon conviction of murder for which a death penalty might have been inflicted, is entitled to bail under a statute allowing bail except in appeals from conviction of a capital offense. It is apparent the conclusion reached was based upon the provisions of a statute regulating bond on appeal. Notwithstanding what seems to be the almost unanimous rule, we shall not rest our decision upon the proposition the constitutional provision refers only to bail before conviction. We shall examine further the nature of the offense and whether our statutes confer any right to bail under the circumstances. In In re Schneck, supra, the defendant sought release on bail. Defendant was arrested in March, 1908, on a warrant charging him with murder in the first degree committed in February, 1907, at which time the death penalty was in effect. At the time of his preliminary hearing the penalty had been changed to life imprisonment. Bail was denied and he instituted a habeas corpus proceeding in this court to obtain bail. Without detailing all that is said in the opinion, we note the court’s holding that: "A person charged with the crime of murder in the first degree, at a time when the statute prescribed the penalty of death for the offense, is not, where the proof is evident or the presumption great, entitled to bail, although the prosecution for the offense may have been commenced after the repeal of that penalty and the enactment of an amendment imposing the penalty of imprisonment for life.” (Syl. If 3.) In In re Truskett, supra, defendant who had been convicted of murder in the second degree at a time when murder was not a capital offense, was denied bail pending appeal. He instituted proceedings in habeas corpus to be admitted to bail. This court considered the provisions of General Statutes 1909, section 6861, dealing with stay of execution and bail, and held that by reason of the statute he was entitled to bail as a matter of right. It is noted however that the above section was thereafter amended and as amended appeared as G. S. 1935, 62-1710. This latter section was repealed by Laws 1937, chapter 274, section 6. It is section 3 of this last act, now appearing as G. S. 1947 Supp. 62-1724, and heretofore mentioned, which now provides for stay of execution and release on bail. The Truskett case is not decisive of the question before us. In In re Ball, supra, habeas corpus was instituted to obtain bail for one bound over on a complaint charging murder in the first degree. The case is of interest -for its review of our constitutional and statutory provisions as to the right to bail, as well as for its many citations of decisions defining what is a capital offense, a matter later discussed. At the time of the decision, 1920, murder was not punishable by death, and the court’s holding that murder in the first degree not being punishable capitally, under the self-executing provisions of the bill of rights, persons charged with that offense are bailable, is not decisive in view of the change in the statute prescribing the penalty which may be inflicted. We next consider the nature of the offense. In In re Stevens, Petitioner, 52 Kan. 56, 34 Pac. 459, this court considered whether an offense denounced in the crimes act and punishable by “confinement and hard labor for a term not exceeding two years, or in a county jail not less than six months” was a felony. Upon consideration the court held: “An offense punishable — that is, that may be punished — by confinement and hard labor for a term, not exceeding two years is a felony.” (Syl. ¶ 1.) In State v. Bowser, 155 Kan. 723, 129 P. 2d 268, defendant sought to withdraw a plea of guilty of manslaughter in the fourth degree, entered under a belief that if only a jail sentence were imposed, he would be guilty of a misdemeanor and not a felony. Reference is made to the opinion for a statement of the facts and the reasoning of this court, which held: “Whether a criminal offense is a felony, under our statutes, is determined by the sentence which might lawfully be imposed, and not by the sentence actually imposed in a particular case.” (Syl. ¶ 1.) Neither party directs our attention to any of our own decisions defining a capital offense, nor does our research disclose any. We. have noted that in In re Ball, supra, the court quoted decisions from other jurisdictions and reference thereto is made. Those decisions support statements appearing in 12 C. J. S. 1129, where in defining “Capital crime, felony or offense,” it is said that the terms include murder in the first degree, murder punishable by death or imprisonment at hard labor and do not include an offense in which death in no event can be inflicted. See, also, 6 Am. Jur. 57, to the same general effect. See, also, Bouvier’s Law Dictionary (Rawle’s Third Revision) where the words “Capital Crime” are defined: “One for which the punishment of death is inflicted.” Reasoning by analogy from our own cases, it would seem that if a crime for which a person may be sentenced to confinement and hard labor in the penitentiary is a felony (G.. S. 1935, 62-104) regardless of the punishment actually inflicted, then if a person may be sentenced to death, his sentence is for a capital offense. There can be no doubt that when defendant was arrested and bound over for trial, assuming the proof was evident or the presumption great, she was not entitled to bail as a matter of right. Certainly after conviction it may no longer be contended the proof is not evident and the presumption great. In our opinion the fact the state did not ask the death penalty, or that the jury did not determine the death penalty should be inflicted, or that the court rendered judgment on the verdict, did not change the offense of which the defendant was charged. This is evident when it is remembered that if defendant should prevail in her pending appeal, and the case be remanded for a new trial, that trial will be on an information charging her with the offense of murder in the first degree under which the state may seek to have the death penalty inflicted. We think it may not be held that defendant is entitled to bail as a matter of constitutional right. Neither do we think the statutes give defendant a right to bail. If G. S. 1935, 62-619 and 62-1206 are interpreted as having application after conviction, it is noted the first section specifically provides that “Persons charged with the crime of murder in the first degree shall not be admitted to bail when the proof is evident or the presumption great,” and that the second section, although not quite so explicit, is to the same general effect. The only section dealing- specifically with stay of execution and bail or bond pending appeal is G. S. 1947 Supp. 62-1724, and under it this court or any justice thereof may order execution of sentence stayed, “and if the offense is bailable after conviction” shall fix the amount of the bond. That statute gives this court no discretion in the matter of- bail. The appealing defendant is entitled to bail as a matter of right or not at all. The last mentioned statute precludes any bail under the facts of the case before us. In view of what has been said it is not necessary we discuss the question whether application for stay of execution and for bail was filed in time. Defendant’s application for this- court to fix and allow bail for her is denied.	[ -48, 104, -11, -97, 42, 96, 42, -104, 97, -79, -96, 115, -23, -97, 1, 125, 26, 109, 84, 121, -61, -73, 55, -23, -78, -13, -101, -43, -77, -40, -2, -1, 76, -16, -118, -43, -58, -56, -63, 24, -116, -123, -87, -31, -40, 18, 52, 43, 108, 15, 113, -114, -93, 107, 30, 66, -88, 41, -37, 61, 32, -16, -117, -113, -3, 86, -109, -128, -108, -91, 88, 38, -40, 53, 8, -20, 115, -122, -122, 84, 111, -117, 12, 38, 98, 16, 93, -17, -24, -119, 46, 126, -115, -90, 24, 1, 67, 72, -106, -99, 103, 116, 39, 124, -17, -121, 89, -20, 9, -53, -80, -79, 15, 116, -110, -113, -61, 5, 48, 97, -116, 98, 76, 70, 123, 91, -98, -68 ]
The opinion of the court was delivered by Wedell, J.: This is an appeal by the defendant from an order overruling his motion to discharge the defendant garnishee and by an interpleader from the order overruling his motion to release property attached by garnishment process. The plaintiff recovered a judgment on a promissory note against the principal defendant, Lloyd M. Reed, in the city court of Wichita in the sum, of $685 together with interest at six percent and costs. On the same date the action was filed plaintiff procured service of garnishment summons on J. C. Edwards. The garnishee answered and admitted: He was indebted to the defendant in the sum of $4,512.88, which indebtedness he said was represented by two checks he previously had issued and delivered to the defendant; that the checks were dishonored by the bank because of “insufficient funds”; a criminal action entitled State v. Edwards was pending in the city court as a result of the issuance and delivery of those checks. The interpleader, Clarence E. Jones, and the defendant, Lloyd M. Reed, were represented by the same counsel. The interpleader claimed the checks had been assigned to him by the defendant Reed prior to the service of the garnishment summons. The city court discharged the garnishee and the plaintiff appealed. In the district court the interpleader, in substance, testified: The two checks involved were marked “insufficient funds” by the bank before they were assigned to him by the defendant. Counsel for the interpleader advised the district court the checks were not endorsed by the defendant but that defendant orally assigned the proceeds of the two checks to the interpleader. The garnishee, Edwards, did not testify. I. H. Stearns, called as a witness on behalf of the interpleader, in substance, testified: He was the attorney for the garnishee and had been at all times during these transactions; at the time of the service of the garnishment summons the garnishee was indebted to the defendant for lumber he had purchased and that he continued to be indebted to the defendant for such lumber in the sum of $2,800; the checks were given for the purchase price of the lumber but the garnishee was not indebted to the defendant in the total amount of the checks because the amount of the checks was in excess of the ceiling price; the garnishee did owe the defendant $2,800; the garnishee was willing to pay that money into court. The defendant did not testify. Upon this record the district court found that at the time of garnishment C. E. Edwards was indebted to the defendant in excess of $716.37 and directed him to pay into the office of the clerk of the district court the sum of $695.27 in satisfaction of plaintiff’s judgment rendered in the action and the sum of $21.10 as costs. The defendant and the interpleader have appealed. Appellants contend the indebtedness of Edwards was not garnish-able at the time the summons in garnishment was served on him. They rely on a portion of G. S. 1935, 60-955 which reads: “No judgment shall be rendered upon a liability of the garnishee arising either: “First. By reason of his having drawn, accepted, made, endorsed or guaranteed any negotiable bill, draft, note, or other security.” and on G. S. 1935, 52-418 which provides: “An instrument negotiable in its origin continues to be negotiable until it has been restrictively endorsed or discharged by payment or otherwise.” Appellants argue the checks originally were negotiable instruments; they were not restrictively endorsed, as those terms are understood under the uniform negotiable instruments act, or discharged by payment or otherwise and were, therefore, negotiable instruments at the time the garnishment summons was served. We need not determine the validity of those contentions. As we view it the liability of the garnishee on which the instant judgment was rendered did not arise by reason of the checks the garnishee executed and delivered to the defendant. The liability arose out of the debt the garnishee continued to owe the principal defendant. The checks did not extinguish the debt. Under the evidence the indebtedness existed at the time the garnishment summons was served notwithstanding checks had been issued therefor. The attorney for the garnishee admitted the garnishee owed a debt of $2,800 at the time the garnishment summons was served and at the time of trial in the district court. The garnishee accordingly offered to deposit that amount with the clerk of the district court. Assuming the oral assignment of the checks, after they were dishonored and known to be dishonored, could constitute a valid transfer of some right, it is clear no money passed and none could thereafter be collected from the bank by virtue of the assignment. The checks having been dishonored had spent their force as an order on the bank to pay to the payee. The subsequent assignment of the checks by the payee did not create a greater right in the interpleader. The giving of a check by a debtor for the amount of his indebtedness to the payee is not, in the absence of an express or implied agreement to that effect, a payment or discharge of the debt. The presumption is that a check is accepted on condition that it shall be paid. With the exception of a few jurisdictions the authorities are unanimous in supporting this rule. (Baker-Evans Grain Co. v. Ricord, 126 Kan. 107, 111, 267 Pac. 14; Garden City Production Credit Ass’n v. Marcotte, 156 Kan. 213, 215, 131 P. 2d 702.) In the instant case there was no evidence to rebut the presumptive acceptance of the checks by the payee. The condition on which the checks were accepted had failed before the interpleader received them. It is settled that the mere taking of a bank check is not a payment of the debt (Kermeyer v. Newby, 14 Kan. 164; Mordis v. Kennedy, 23 Kan. 408, 409) and if the check is not paid, the party may return it and sue on the original debt. (Baker-Evans Grain Co. v. Ricord, supra, p. 111.) G. S. 1935, 52-1706 reads: “A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check.” See, also, In re Estate of Brown, 159 Kan. 408, 412, 155 P. 2d 445. Most of the decisions relied upon by appellants are note cases. One is a check case. They have been examined with care. The principles announced therein do not justify a reversal of the judgment rendered under the testimony in the instant case. The judgment is affirmed.	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The opinion of the court was delivered by Hoch, J.: This was an action by a real estate broker to recover a commission on the sale of real estate. A demurrer to the plaintiff’s evidence was sustained and he appeals. The only question is whether the trial court erred in taking the case away from the jury. In testing plaintiff’s evidence as against the demurrer we observe the repeatedly stated rule that only such evidence as is favorable to him can be considered, and that all reasonable inferences to be drawn therefrom must be indulged in his favor (Gabel v. Handy, 165 Kan. 116, 119, 193 P. 2d 239; Robinson v. Short, 148 Kan. 134, 79 P. 2d 903). Plaintiff’s testimony, here pertinent, may be summarized as follows: W. J. Reiling, the appellee, owned a farm in Geary county; in November, 1945, he listed it with the appellant DeYoung, who had been a real estate agent for about twenty-two years, for sale at $75,000 cash or $80,000 on a trade, at the regular and customary real estate commission of five percent on the first $5,000 and two and a half percent on the amount above that paid by the purchaser; thereafter DeYoung got in contact with one E. E. Giles and.took Giles to the Reiling farm, introduced him to Reiling and showed him the farm; Giles had also listed with D'eYoung a farm in Hodgeman county, for sale at $50 an acre; Giles went back to the Reiling ranch upon several different occasions and looked it over; DeYoung told Reiling of the Giles farm in Hodgeman county being for sale at $50 an acre and offered to take him out to see it but was told by Reiling that he could not get away but would go out sometime himself to see it; Giles told DeYoung that there was some question about the title to his Hodgeman county land; in January, 1946, DeYoung received a postal card from Reiling stating “I will not give possession March 1 after Feb. 2. This week the price is $75,000 cash or $80,000 traid”; Reiling was in DeYoung’s office two or three times prior to May 16, 1946, at which times the Hodgeman county land was discussed between them; in a conversation with Reiling on May 18, Reiling asked if Giles would put in 640 acres on the deal instead of 945 acres, and DeYoung called Giles about that and Giles said he would hot, and Reiling was so informed; DeYoung told Reiling that the Hodgeman county land was priced at $50 an acre; on May 21, Reiling called DeYoung on the telephone and told him that he had made a deal for the sale of the farm and wasn’t going to pay him any commission, and when DeYoung asked him why he was not going to pay the commission, he said that he had gotten the Hodgeman county land for less money than DleYoung had offered it to him; Giles told DeYoung that he and Reiling had reached an agreement but had not signed a contract and DeYoung told Giles he did not want to spoil any deal and to go ahead and sign the contract and he would get his commission; about thirty days after the deal between Giles and Reiling had been closed, DeYoung went to see Reiling about his commission and Reiling complained about his commission being $2,125 instead of $2,000' and said that he had already paid a commission to Cline, another real estate agent; DeYoung had many conversations with Giles after Reiling had listed the farm for sale with him, and the price of $50 per acre for the Hodgeman county land was never changed; DeYoung talked with Reiling on November 30 with reference to a proposition to exchange or trade for the Hodgeman county land, and Reiling said he had been out to see the Hodgeman county land but did not say with whom he went. DeYoung offered to take Reiling out to see the Hodgeman county land that time but Reiling said that he wanted to go by himself. Giles testified that he owned the Hodgeman county land in 1945, but that the title had not been perfected; that he became acquainted with Reiling when DeYoung took him out to the farm and introduced him in the fall of 1945 at which time DeYoung showed him the Reiling farm with the view of selling it to him, and priced it at $80,000; that he gave the Reiling farm a thorough inspection, looked through buildings and rode over pastures with DeYoung and Reiling, but was not quite satisfied and wanted to look it over further; later he returned and Reiling’s son went with him on horseback over the place. He made four or five trips to the Reiling farm and during all of that time discussed its purchase with DeYoung and also talked over with DeYoung the matter of exchanging his Hodge-man county land for it. DeYoung got in contact with him a number of times concerning purchase of the Reiling farm. The title to the Hodgeman county farm was not cleared up until a week or two before the trade was finally consummated. DeYoung called him by telephone and told him that Reiling was in DeYoung’s office at that time but he could not leave his work then, and this was just a few days before the deal was finally closed. Two or three days before he completed the deal with Reiling, Giles was in the office when DeYoung put in a telephone call for Reiling but was told that Reiling had gone to western Kansas. Up to that time he (Giles) had never had any transactions of any sort with Cline about the Reiling land. He had, however, listed his Hodgeman county land with Cline. Cline never took him out to see the Reiling farm. The day before he came to Junction City- where the deal was finally closed, he had a call from someone to come to Junction City, but did not know then whether it was Reiling or Cline. Before he went to Junction City, he tried to get in touch with DeYoung by telephone but got no answer; a telephone call from DeYoung when Reiling was in his office was after the title had been straightened out. In that conversation, no offer was related to him by D'eYoung that was acceptable to him and he went down to DeYoung’s office the next day and had a talk with him. In that talk, nothing was gone into with reference to the terms of the trade that he and Reiling might work out; nothing about the wheat crop or when possession could be given or about the amount of the mortgage that was on the land, or the taxes. When he went to Junction City in response to the telephone call, he met Reiling and Cline at the hotel. There was discussion about who should receive the wheat crop on the Hodge-man county land and “the trading back and forth was between Mr. Reiling and me, but Mr. Cline would come into' the conversation when it looked like it was going to slow down. He kept the negotiations rolling along. It took quite a while to thresh out the question of possession.” (Italics supplied.) The differences between them as to the time of possession, as to the taxes — the taxes on the Reiling land being much larger than those on the Giles land — as to future payments and other matters, were worked out between them. It was during these negotiations that an acceptable proposition involving the trade was first offered. In sustaining a demurrer to the above evidence, the trial court commented as follows: “It rather strikes me that this was something in the nature of a horse race between these two real estate agents. According to the evidence which is before the court now they each had this land listed with them at about the same time. The Reiling land and the Giles land apparently was listed not only with these two agents but with other agents along about the same time. The two agents who are involved in this case apparently worked upon the proposition, — I don’t know whether it was unknown to each other or not — but it certainly was known by both of the owners of this land, Reiling and Giles, that both of these agents were working upon the proposition right down to the last day. It seems to me that there is no question but what the rule is that that agent who is the procuring cause of the sale is the one that is entitled to the commission. Up until the day which this deal was consummated it seems to me that the evidence shows that these two agents were about equal in so far as their efforts were concerned to consummate this sale. On the day of the sale the agent Cline was the one who finally closed it. What occurred upon that day is the thing, rather slight, it is true, but it is the thing that actually tipped the scales and caused the deal to be consummated. It seems to me that there is an insufficient showing on the part of the plaintiff and that the demurrer should be sustained.” We need not here discuss at length the conditions under which real estate agents or brokers are entitled to a commission. Various aspects of the pertinent law on that subject are treated extensively by the textbook writers — and the cases from which the applicable rules are deduced are legion. It is well, however, to have in mind at the outset some long-established rules. A broker is entitled to a commission if he produces a buyer who is able, willing and ready to purchase upon the proffered terms or upon terms that are acceptable to the principal. He must be the “efficient,” the “procuring” cause, or as some cases say, the “proximate” cause, of the consummated deal. An owner who has knowledge that a broker with whom he has listed his property has interested a prospective customer with whom he is still conducting negotiations, cannot defeat the broker’s right to a commission by the expedient of closing the deal himself or through another broker (12 C. J. S. 215 to 217). The payment of a commission to one broker is not in itself sufficient to avoid liability to another broker provided upon all the facts it appears that the other broker was the procuring cause of the completed transaction (12 C. J. S. 213). The question of whether a broker has performed services entitling him to a commission is ordinarily one of fact for the jury, if there is conflict of evidence or if there is any substantial evidence to support the essential elements of his cause of action (12 C. J. S. 296, et seq.). Each case must be determined upon the particular facts presented. Whether the broker was the procuring cause of a purchase must be determined in the light of all the facts and circumstances leading up to and including any final negotiations between the vendor and purchaser. Among our cases in which this rule has been followed may be cited: Ingalls v. Smith, 93 Kan. 814, 145 Pac. 846; Thornhill v. Oldham, 116 Kan. 107, 225 Pac. 1028; Osburn v. Moore, 108 Kan. 90, 193 Pac. 892; Moore v. Gould, 108 Kan. 99, 193 Pac. 1057; Neiderlander v. Starr, 50 Kan. 770, 33 Pac. 592; Fall v. Tucker, 113 Kan. 713, 216 Pac. 283; Wells v. Hazlett, 125 Kan. 265, 264 Pac. 19; Soper v. Deal, 103 Kan. 522, 175 Pac. 396; Orr v. Meng, 126 Kan. 723, 271 Pac. 292; O’Neill v. Foster, 150 Kan. 593, 95 P. 2d 253; Brotton v. Dawson, 137 Kan. 44, 19 P. 2d 467; and Grimes v. Emery, 94 Kan. 701, 146 Pac. 1135. In Moore v. Gould, supra, the trial court sustained a demurrer to the plaintiff’s evidence upon the ground that there was a variance between the terms agreed upon when the property was listed and those upon which it was sold by another agent. Upon appeal the judgment was reversed, this court holding that the demurrer should have been overruled since the plaintiff had produced a buyer who was ready to buy on terms agreed to by the seller. In Soper v. Deal, supra, the syllabus reads: “In an action for a real estate agent’s commission, where a sale was made through another agent to a purchaser with whom negotiations had been first started by the plaintiff, it is held that the evidence warranted submitting to the jury the question whether the sale was made as the result of a new and independent cause, disconnected with anything the plaintiff had done, operating after the efforts of the plaintiff to make a sale had failed and spent their force, and the purphaser had finally and in good faith decided not to buy on the terms offered him by the plaintiff.” We are unable to adopt the view of the trial court that plaintiff’s evidence was insufficient to take the case to the jury. Before considering other aspects of the evidence, we take note of certain comment by the trial court which we think inadvertent, but which inaccurately reflected the record. The court stated that the Reiling land was apparently listed with both agents along about the same time. We find no evidence that Reiling ever listed his farm with Cline. In oral argument here, counsel for the appellee conceded that the only evidence bearing upon that question was from the testimony of Giles. Being questioned as to what happened "several days” before the deal was closed, he was asked “By the way, up to that time had you had any transactions whatever with a Mr. Cline about this Reiling land?” and answered “I had listed the Hodgeman county land with him, yes, and I don’t remember, it might be that he had suggested something about it, but I don’t remember.” (Italics supplied.) The fact that Giles had listed his Hodgeman county-land with Cline and that Cline may have “suggested something” about the Reiling land, certainly does not constitute clear evidence that the Reiling land had been listed for sale with Cline. The trial court commented further to the effect that “both of these agents were working upon the proposition right down to the last day” and that “up until the day which this deal was consummated it seems to me that the evidence shows that these two agents were about equal in so far as their efforts were concerned to consummate this sale.” To say the least, that comment did not, in our opinion, give the plaintiff the full benefit of his evidence. The evidence was that beginning in the fall of 1945 and until the deal was closed on May 21, 1946, DeYoung had conducted many negotiations with Giles in an effort to make a trade or a sale of the Reiling land. We find no evidence that prior to the day the deal was closed, Cline had done anything with Giles as far as a sale or trade of the Reiling land was concerned except the testimony of Giles, just referred to, that Cline may have at some time suggested something about the Reiling land to him. And he didn’t even remember as to that. The trial court apparently proceeded upon the theory that both DeYoung and Cline had been equally active in selling the Reiling land to Giles and that since the deal was finally closed between Reiling and Giles with Cline present and participating in the final negotiations, it follows as a matter of law that DeYoung was not entitled to a commission. We do not agree that the evidence requires the conclusion that both agents had been equally active as to the Reiling land. Even the question of whether Cline was'entitled to full credit for getting the parties to iron out matters incident to closing the deal and. agree fully on terms was, we think, a question of fact for the jury under the evidence. With reference to what took place on the day the deal was closed at Junction City, Giles testified: “We finally agreed on a price after a lot of other parts of the deal had been agreed upon” and “Mr. Cline was there sitting in the conversation. The trading back and forth was between Mr. Reiling and me, but Mr. Cline would come into the conversation when it looked like it was going to slow down. He kept the negotiations rolling along.” (Italics supplied.) In any event, the circumstances incident to final closing of the deal are not, under abundant authority, the only thing to be considered. It is unnecessary to review in full plaintiff’s evidence as heretofore set out. The Reiling land had been listed with DeYoung for at least six or seven months. DeYoung took Giles to the Reiling farm, introduced him to Reiling and showed him the farm. Giles went back and looked over the Reiling farm four or five times and during all that time he discussed with DeYoung the purchase of the Reiling farm or a trade. DeYoung told Reiling about the Giles farm in Hodgeman county and offered to take him out to see it but Reiling could not go at that time and said he would go out some time and see it himself. Reiling was in DeYoung’s office a number of times at which the Giles farm was discussed. The title to the Giles farm was not cleared until a short time before the trade was made. Giles did not testify as to any transaction with Cline involving the Reiling land other than that above noted. Cline never showed him the Reiling land. Other evidence, heretofore set out, need not be repeated. We are not here saying that the appellee may not place a construction upon the plaintiff’s evidence entirely different from that urged by appellant. Of course we do not speculate as to what Reiling’s testimony might be. We are in no way weighing the evidence. We are only saying that the evidence entitled the plaintiff to go to the jury upon the question of whether he had produced a buyer who was ready, willing and able to purchase or trade for the Reiling land upon terms that were acceptable to Reiling, and whether he was in fact the procuring cause leading up to a closing of the deal. The judgment is reversed with directions to overrule the demurrer.	[ 81, -18, -11, -99, 26, -32, 42, -38, 98, -95, -10, 83, -23, -62, 17, 125, -78, 45, 84, 104, -58, -78, 82, -30, -46, -77, -47, -49, -71, -51, -12, 85, 76, 48, 74, 21, -26, -32, -59, 16, -114, 4, -119, 78, -39, 64, 48, 47, 16, 75, 113, -82, -13, 40, 61, -61, 45, 46, -21, 49, -63, -72, 58, -121, -33, 6, 49, 38, -102, 3, -24, 106, -112, 61, 0, -24, 115, 54, -122, 116, 77, -117, 40, 38, 103, 19, -43, -83, -24, -116, 47, -3, -123, -89, -112, 72, 2, 105, -98, -99, 113, 0, 3, -2, -25, 77, 93, 104, 15, -113, -106, -77, 15, 120, -112, 11, -5, 5, 17, 112, -51, -94, 92, 71, 82, -101, -113, -112 ]
The opinion of the court was delivered by Cowan, J.: The petitioner for a writ of habeas corpus pleaded guilty to burglary in the second degree. He was arrested for the burglary of a store located at 308 South Main street, Hutchinson, Kan. The crime was committed on the 22d day of January, 1945, in Reno county. Don Shaffer of the Hutchinson bar, employed by the petitioner, represented him throughout the proceedings. Affidavits of Don Shaffer, and of Fred C. Preble, who was assistant county attorney of Reno county at the time in question and handled the case of the petitioner, have been submitted in this cause, together with the record. The record and evidence presented herein establish that previously the petitioner had been convicted of felonies; that his attorney made an arrangement with the county attorney whereby, if the petitioner would plead guilty to burglary in the second degree, his prior convictions would not be called to the court’s attention and the imposition of the penalties of the habitual criminal act would not be exacted. The testimony further shows that part of the loot from the burglary was found on the person of the petitioner and that he had admitted the commission of the offense. Preliminary examination was waived by his attorney and when his case was called in the district court, petitioner voluntarily entered a plea of guilty to burglary in the second degree. The petitioner claims that he was proceeded against by information rather than by grand jury indictment and hence he was not afforded due process of law. This court has already decided that contention is without merit. (Bailey v. Hudspeth, 164 Kan. 600, 191 P. 2d 894.) The prisoner contends he was denied the right to be represented properly by counsel. As we have already set out, he was represented by counsel of his own choosing. The court finds from the record and the evidence that he was properly represented by a capable attorney who conscientiously looked after the prisoner’s interests. A further ground for the application is that the petitioner was forced to enter a plea of guilty under coercion. Petitioner also contends that at the time of the entry of his plea, the prosecutor had information in his own office that petitioner was in jail at Hutchinson on the date of the commission of the crime and, hence, could not have been guilty of the offense charged, but that notwithstanding such information, the prosecutor permitted petitioner to plead guilty. We have examined the record and the affidavits in this case and find there was no coercion, that the prisoner was not in jail at Hutchinson at the time of the commission of the offense and that there could not have been in the office of the prosecutor evidence establishing the innocence of the petitioner. One other ground, in petitioner’s application is to be noted, namely, that the journal entry does not comply with G. S. 1947 Supp., 62-1516, in that no reference is made to the section of the statute under which the judgment was rendered and sentence imposed. The journal entry is not complete in the respect named. We need not repeat what has been said in the case of Wilson v. Hudspeth, No. 37,356, this day decided. The procedure there outlined is to be followed in this case. The attorney general is directed to complete the journal entry in the manner set forth in that case. When the journal entry is completed as above outlined, the writ will be denied. It is so ordered.	[ -16, -22, -3, 63, 11, -32, 58, -68, 64, -77, 38, 115, -31, -54, 1, 121, 91, 61, 85, 121, -40, -106, 115, -63, -78, -13, -53, -107, -77, 75, -68, -42, 74, -80, -58, -43, 102, -120, -89, -36, -114, 3, -119, -15, -32, 0, 56, 105, 20, 15, -79, 28, -13, 42, 22, -62, 9, 44, 75, -67, 48, -103, -103, 21, 93, 6, -95, 38, -108, 71, 112, 46, -68, 57, 1, -24, -13, -122, -122, 116, 79, -69, 44, 102, 98, 33, -55, -18, 40, -123, 46, 59, -67, -89, -111, 73, 73, 97, -106, -99, 97, 80, 35, -8, -9, 52, 31, 108, -119, -50, -12, -111, -113, 116, 6, 91, -21, 1, -128, 113, -59, -26, 88, 103, 88, -101, -114, -108 ]
The opinion of the court was delivered by Cowan, J.: The defendant was convicted of robbery in the first degree and sentenced to the Hutchinson reformatory for the period prescribed by statute for such offense. About November 9, 1946, William Lester Baum held up a poker game in El Dorado, Kan. The evidence of the state showed that the defendant and his brother, Dan McGlade, a few days prior, had arranged with Baum to hold up the game which they knew would be in progress at the time. The defendant and Dan McGlade were in the room at the time of the holdup. Baum entered the room, carrying a small revolver and having on a mask. He told the players that .this was a stickup and directed the defendant, to whom he pointed, to search the players for their money and put it on the table. The defendant threw his money on the table and pretended to search the other participants or occupants of the room but, in fact, took no money from them. Baum, becoming nervous, took the money the defendant had placed on the table, together with the money that was lying on the table at the time of his entrance, and left the room. Previous to the trial Baum pleaded guilty to robbery in the first degree but had not been sentenced at the time of the trial. Baum testified for the state, detailing the agreement made with the defendant prior to the robbery and the actual occurrences at the time of the robbery. At the close of the state’s case, it asked the trial to be recessed until it could apprehend Dan McGlade, brother of the defendant. Dan McGlade’s name had not been endorsed on the information as a witness. The court found that the state had not been diligent in attempting to procure his attendance at the trial and directed the trial to proceed. The defendant took the stand, denied the arrangement and conspiracy but admitted, of course, that under the threat of Baum’s gun he did pretend to take the money from the various persons in the room at the time of the holdup., After the defense had rested, Dan McGlade, who was on parole from the Hutchinson reformatory, was called as a rebuttal witness. The defense objected to this witness being used in chief. The court sustained that objection and directed that he be used only as a rebuttal witness. The testimony of Dan McGlade, however, was that of witness in chief and not in rebuttal. He testified, in substance, to the same things Baum testified to in chief, including the conspiracy to rob the poker game. Clearly, his evidence was not limited to that of a rebuttal witness. After the jury retired to consider its verdict, it appears to have reached a stalemate of 11 to 1 for conviction. The bailiff, who had charge of the jury, overheard the conversations in the jury room and reported, either to the county attorney or his assistant, to the clerk of the district court and apparently to the district judge, the name of the juror who was refusing to convict and the pronounce ment of such juror of his unalterable determination to continue to vote for acquittal until the end of time. Later the jury was called into court; the foreman reported the jury was deadlocked. The judge gave the jury the usual instructions incident to attempting to get a jury to agree. About 9:00 P. M. the jury retired for further consideration of the evidence. Soon thereafter the foreman of the jury came to the door of the jury room and asked to see the judge. The bailiff brought him to the judge, where he conferred for approximately two minutes. According to the judge’s testimony, the foreman asked him what the penalty would be if the defendant were found guilty and he was informed that the matter was one for the court and not for the jury. The foreman returned to the jury room and shortly thereafter the jury came in with a verdict of guilty with a recommendation for clemency. The only evidence in the record as to what the foreman told the jury as the result of his quest for information is found in the affidavit of the juror who was holding out for acquittal. This affidavit was offered in support of motion for a new trial, and is, in part, as follows: “We continued to discuss the matter in the jury room, and my belief in the defendant’s innocence never wavered. About this time the Foreman excused himself, and left the jury room by himself. Later he came back and told us that he had talked to the Judge, and the Judge told him that if the boy was found guilty he would only be sent to the Reform School for awhile. The other jurors continued to excoriate me, and I told the Foreman — ‘Well I will go along with you fellows if the Judge will be lenient with this boy, and if you will write it out in full on the verdict that way.’ We had been given only two forms of.verdicts by the Judge. The Foreman filled out one of these forms, and then he changed it to read to the effect — (I cannot give the exact words), that the Judge was to„show leniency to the boy. Then this amended verdict was signed by the Foreman.” The juror’s affidavit continues with the statement as to what induced him to vote finally for conviction. Of course, jurors are not permitted to impeach their verdict by subsequently testifying as to what caused them to reach the conclusion they did. It is quite obvious from the facts and circumstances that this report of the foreman to the jurors caused the lone juror, who was holding out for acquittal, to abandon his position. The defendant filed a motion for a new trial and a motion in arrest of judgment, both of which were overruled. After sentence, the defendant appealed. The defendant cites numerous errors but as we view the record the only meritorious ones are two in number. G. S. 1935, 62-802, requires the names of witnesses to be endorsed on the information. This statute was enacted for the protection of the defendant. Generally, the question of endorsement of names on the information is one of discretion to be exercised by the trial court. The trial court here did not permit the name of Dan McGlade to be endorsed on the information but permitted him to testify in rebuttal only. Rebuttal testimony is evidence which tends to contradict the defendant’s testimony, but strictly speaking, is only such evidence as tends to contradict some new fact or circumstance brought forth by the defendant’s testimony and is not evidence which is a restatement of the state’s case in chief. In this instance, Dan McGlade’s testimony was clearly evidence in chief and was prejudicial to the defendant, being admitted as it was after the defendant had testified denying the charge. Under the circumstances, the admission of Dan McGlade’s testimony in rebuttal was prejudicial error. (State, ex rel., v. Stout, 101 Kan. 600, 168 Pac. 853; State v. Eidson, 143 Kan. 300, 54 P. 2d 977.) Another point raised by the defendant involves the misconduct of the bailiff and the foreman of the jury. As has been stated many times before, after a jury has retired, the only proper forum for communication between a juror and the court or the court and a juror is in open court in the presence of the rest of the jury and counsel for both parties, and the defendant, where proper record of the conversation can be had. When the foreman came to the judge and asked about the penalty, it became incumbent upon the district judge to say, “I cannot talk to you alone. You did wrong in leaving the other jurors and coming to me.” It would then have been the duty of the judge to direct the bailiff to bring the jury to the courtroom and, in the presence of counsel and the defendant, permit the foreman to present any question which was bothering the jury and answer such question, if proper. Failure to follow this simple procedure has given rise to a serious question of invasion of defendant’s rights. After the jury retires, the bailiff is under a sworn duty not to permit any person to communicate with the jurors except by order of court and not to communicate to any person the state of their deliberations. In this case, the bailiff violated his duty. The, state has cited several cases in an attempt to establish that the conduct in this case was not prejudicial. One of the cases so cited is State v. Richardson, 137 Kan. 38, 19 P. 2d 735. In that case, after the jury had retired, the foreman met the judge in the corridor of the courthouse and asked the judge what punishment could be inflicted upon a verdict of guilty on any one of the counts. The judge told him that the punishment could be made to run consecutively on each count or could be made to run concurrently but that was a matter for the court, and the jury had nothing to say about it. Counsel for defendant were present when this conversation took place. What was said to the juror was a correct statement of the law and was not prejudicial, as it did not affect the jury’s verdict. There was no promise of leniency. It was made in the presence of counsel for the defendant who apparently made no objection thereto. Here, however, the foreman, in reporting to the rest of the jurors his conversation with the judge, stated the judge had told him if a verdict of guilty were returned with recommendation for clemency the sentence would be reduced. Another case cited is State v. Evans, 90 Kan. 795, 136 Pac. 270. The jury there, before reaching a verdict, sent an inquiry to the court to know if it would be proper to return a verdict with a recommendation for clemency. The judge, in the absence of the defendant, went to the door of the jury room and stated that there would be nothing improper in such a verdict but that he would not say whether the recommendation would be considered nor make any promise as to what he would do in such a case. Shortly thereafter a verdict of guilty was returned, with recommendation for clemency. This court held that the statement of the judge related only to the form of the verdict, and inasmuch as it did not appear that the jurors were induced to render a verdict of guilty by an implied promise that leniency would be shown, the irregularity was not sufficient to justify a reversal. The court, in that case, quoted the following from State v. Borchert, 68 Kan. 360, 366, 74 Pac. 1108: “ ‘There is nothing in the record to justify the contention that the effect of the judge’s conduct was to hold out to the jury as an inducement to a verdict of guilty an implied promise that leniency would be shown in fixing the punishment.’ ” (p. 799.) Such was not the situation in this case. Here the direct result of the garbled report of the foreman of the jury of his conversation with the judge caused the jury to believe that a verdict of guilty, coupled with a recommendation for clemency, would materially reduce the sentence. Had the foreman not been permitted to communicate with the judge in the absence of the other members of the jury and the defendant and his counsel, the foreman’s statement would, have had no effect upon the other jurors. It is clear from the circumstances of this case that the foreman’s report of his conversation with the judge was instrumental in influencing the dissenting juror to agree to a verdict of guilty, when, except for such reported promise, he would not have done so. (State v. Hathaway, 143 Kan. 605, 56 P. 2d 89.) The approval by the trial court of the conduct complained of was prejudicial. For the errors above set forth, the cause is reversed, with directions to grant the defendant a new trial.	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Granted. Unpublished	[ -107, 121, -99, 31, -86, 33, 58, -98, -58, -113, 38, 127, -49, -21, 28, -47, -89, 103, 20, 83, -20, 3, 119, -43, -30, 83, -77, 91, 81, 102, -66, 24, 78, -96, -102, 61, -26, -56, -51, -56, -126, 21, -120, -116, -48, 65, 36, 35, -55, 15, 81, 84, 112, -86, 30, 65, -52, 62, -57, -115, 81, -23, -99, 67, -1, -108, -126, 85, 60, -53, -64, -18, -103, 56, 5, -86, 114, -26, -126, 87, 11, -5, -80, 4, 26, 112, -68, -3, -96, -76, 7, -50, -83, -124, 9, 73, 105, 121, 26, 57, -120, 20, 35, 56, 99, -127, 61, 34, 43, -33, 102, -93, 95, 40, 12, 11, -5, 63, 35, 55, -57, 118, -52, -14, 61, -126, -62, 55 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
The opinion of the court was delivered by Nuss, C.J.: A jury convicted Michael Akins, Jr., of eight counts of aggravated indecent liberties with a child, one count of attempted aggravated indecent liberties with a child, one count of indecent liberties with a child, one count of aggravated indecent solicitation of a child, three counts of indecent solicitation of a child, and one count of battery. The district court sentenced him to prison for two consecutive hard 25 life sentences plus 59 months. Alans appeals his convictions and sentences. Our jurisdiction of his appeal is under K.S.A. 22-3601(b). The issues on appeal, and our accompanying holdings, are as follows: 1. Did the prosecutor commit reversible misconduct? Yes. 2. Did the district court err by excluding testimony about prior false allegations of sexual abuse on the basis the proffered witnesses were related to Akins? Yes. 3. Did the district court err by failing to use written unanimity juiy instructions for the charges? Moot. 4. Did the district court err by failing to comply with the juiy-polling statute, K.S.A. 22-3421? Moot. 5. Did cumulative error deny Akins a fair trial? Moot. 6. Are Akins’ sentences unconstitutionally disproportional to the crimes charged? Moot. Accordingly, we reverse and remand for a new trial. Facts Defendant Michael Aldns, Jr., married Jennifer B. in April 2008. Jennifer had six children from a previous marriage: daughters, M, L, J, K, and N, and one son, E. Akins, Jennifer, and the children lived together at Aldns’ home in Inman, Kansas. At all relevant times, Aldns was the police chief of Inman, and Jennifer worked for the McPherson County Attorney’s office. Their marriage was short-lived, with the couple separating on December 18, 2009. Approximately 2 weeks later, Jennifer asked her oldest daughter, M, whether Aldns had ever done anything inappropriate to her. M replied that Aldns had touched her inappropriately and described the incidents while Jennifer took notes. Jennifer told her next three oldest children, E, L, and J, that Akins had done inappropriate things to M and asked if he had done likewise to them. All three replied that he had also touched them inappropriately. Jennifer took notes of her conversations with L and J, but E prepared his own notes about the incidents. Jennifer reported her children’s allegations to her supervisor at the McPherson County Attorney’s office, who then asked the Kansas Bureau of Investigation (KBI) to investigate. As a part of the resulting KBI investigation, M, E, L, and J were all interviewed about their allegations. M and E were interviewed by Kelly Robbins, fee executive director of the Western Kansas Child Advocacy Center and Finding Words of Kansas. L and J were interviewed by Wilma Mueller, an investigative social worker at Kansas Social and Rehabilitation Services in Newton, Kansas. Both interviewers were trained in fee “Finding Words” protocol for interviewing children in cases of suspected sexual abuse. Based on fee children’s allegations and their interviews, fee State charged Aldns with 21 counts of various crimes. Each count was based on incidents feat allegedly occurred between May 15 and December 18, 2009, fee date of fee couple’s separation. Regarding M, the State charged Akins with nine counts of aggravated indecent liberties, one count of indecent liberties, and three counts of indecent solicitation of a child. As to E, it charged Alans with two counts of battery, one count of aggravated indecent liberties, and one count of lewd and lascivious behavior. For L, it charged Alans with two counts of aggravated indecent solicitation and one count of aggravated indecent liberties. And as to J, it charged Alans with one count of aggravated indecent liberties. Each child testified at trial about encounters with Alans. M testified that Akins had entered her bedroom and touched her vagina, fondled her vagina in a car, penetrated her vagina with his fingers, fondled and sucked on her breasts, asked her to pull on his penis, had her pull on his penis, asked her if she wanted to put his penis in her mouth, and asked if he could perform oral sex on her. M also testified that Akins would enter die bathroom while she was showering and comment on her breasts. She said he sent her more text messages than any other person and sent her flowers several times. According to M, Akins sometimes woke her in the morning by sitting in bed with her and saying “good morning, wifey.” She testified further that Alans had her shave his back while he was wearing only his underwear. M also stated that Akins also had her younger sisters shave his back. Finally, she testified Aldns once asked her if she wondered what a French lass would be like and later kissed her, licking around her lips. M was 14 years old when the alleged incidents occurred. L testified that Akins asked to see her chest but that she initially refused. When Alans persisted, she eventually relented. She also said Alans made her shower with her younger sister, J, to save water. According to L, Alans opened the shower curtain while she and J were showering and touched her nipples and buttocks. L also testified she saw Akins repeat this behavior with J. F further said Alans sometimes rubbed her chest with his hand inside her pajamas while making an “mmm, mmm” noise. L was 9 or 10 years old during these alleged incidents. J testified that Akins used his hand to touch her chest, vagina, and buttocks outside her clothes. Sometimes this would occur while wrestling with Akins and the other children. According to J, Akins would enter the bathroom while she and L were in the shower, and, without saying anything, reach around the shower curtain to pinch her chest or buttocks. J was 7 or 8 years old during these alleged incidents. E testified Alans used to grab his sisters’ hands and use them to hit E’s crotch. He said one night when Alans was mad about something he grabbed E’s crotch and said, “You better watch your balls, boy.” And on another occasion, Akins grabbed E’s penis over E’s boxers and said, “You better watch your penis.” E testified Akins would grab E’s hand, place it on Alans’ crotch, and say, “You’re violating me.” As to Akins’ behavior toward E’s sisters, E testified that he witnessed Alans touching L and J on the chest and that he heard Alans tell L, “Wow, you’re getting chesty.” He said he once saw Alans put his hand down L’s pants after he came in from the cold, saying, “Isn’t that cold?” Finally, E testified that on at least five occasions Akins entered the living room after taking a shower, removed his towel, and swung his penis around while saying “helicopter.” E was 12 or 13 years old during these alleged incidents. After the children’s testimony, the State presented testimony from Robbins and Mueller and published to the jury video recordings of their interviews with the children. The interviews were generally consistent with the handwritten notes from Jennifer’s initial inquiries and the children’s trial testimony. But trial was the first time M alleged that Akins asked to perform oral sex on her. During Alans’ case-in-chief, he presented testimony from psychologist Kathie Nichols. She testified generally about suggestibility. According to Nichols, suggestibility is a theory that indicates some children will incorporate outside information into their recollection of events. The outside information often comes from overheard conversations or inartful questioning. She specifically criticized die Finding Words protocol used by Robbins and Mueller in comparison to other interview techniques. Nichols identified characteristics of their interviews that indicated the children might have incorporated “suggested” information into their recollection of events. Akins also testified in his own defense. Akins denied touching any of the children “in a sexual way” or having any sexual contact with them. He also denied pinching any of the girls’ nipples or fondling their breasts or upper chests. Finally, he denied touching M’s genitals or breasts, and he specifically denied M’s allegation that he fondled her in the car. Alans admitted that Jennifer’s daughters had helped shave his back at his request and that he wore his underwear when they shaved him. After 2 days of deliberations in January 2011, the jury found Akins guilty on 15 of the 19 counts submitted. As to M, it convicted on six counts of aggravated indecent liberties, one count on the lesser included offense of attempted aggravated indecent liberties, one count of indecent liberties, and three counts of indecent solicitation of a child. As to E, the jury convicted on one count of battery. Regarding L, it convicted on one count of aggravated indecent liberties and one count of aggravated indecent solicitation. Finally, as to J, it convicted on one count of aggravated indecent liberties. Alans’ four acquittals included one count of aggravated indecent liberties regarding M and one count each of aggravated indecent liberties, battery, and lewd and lascivious behavior regarding her brother E. The district court sentenced Akins to two consecutive hard 25 life sentences under Jessica’s Law, K.S.A. 2010 Supp. 21-4643, for the two aggravated indecent liberties convictions involving J and L. It also sentenced Alans to 59 months’ imprisonment consecutive to the life sentences for one aggravated indecent liberties conviction involving M. It further imposed concurrent prison terms ranging from 6 to 63 months for the 12 remaining offenses and ordered lifetime postrelease supervision. Akins appealed. More facts will be added as necessary to the analysis. Analysis Issue 1: The 'prosecutor committed reversible misconduct. Akins argues that the prosecutor, Assistant Attorney General Christine Ladner, committed reversible misconduct in three separate instances. The State responds that two of the instances are not prosecutorial misconduct. While it concedes that the remaining one was misconduct, it contends the error was harmless. Standard of review We have said that review of prosecutorial misconduct claims involves a two-step process. We first decide whether the comments were outside the wide latitude a prosecutor is allowed, e.g., in discussing the evidence. If so, there was misconduct. Second, if misconduct is found, we have said the court “must determine whether the improper comments prejudiced the jury and denied the defendant a fair trial.” State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013) (citing State v. Marshall, 294 Kan. 850, 856, 281 P.3d 1112 [2012]). For years we have considered several factors in analyzing this second step: (1) whether the misconduct was gross and flagrant; (2) whether it was motivated by prosecutorial ill will; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. No single factor controls the outcome of this inquiry. Bridges, 297 Kan. at 1012 (citing Marshall, 294 Kan. at 857). Since 2004, this court has also demanded that any prosecutorial misconduct meet the “dual standard” of both constitutional harmlessness and statutory harmlessness before we will uphold the conviction. See Bridges, 297 Kan. at 1012; State v. Tosh, 278 Kan. 83, 97, 91 P.3d 1204 (2004) (“Before the third factor can ever override the first two factors, an appellate court must be able to say that both the K.S.A. 60-261 and the Chapman [v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967)] harmlessness tests have been met.”). Under Chapmans constitutional harmless error analysis, "the error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). As to the harmless error analysis defined in K.S.A. 60-261, the test is equally clear. We “ ‘determine if there is a reasonable prob ability that the error did or will affect the outcome of the trial in light of the entire record/ ” State v. Friday, 297 Kan. 1023, 306 P.3d 265, 273 (2013) (quoting Ward, 292 Kan. 541, Syl. ¶ 6). Both standards require the party benefiting from the error—the State in cases of prosecutorial misconduct—to demonstrate harmlessness. State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013). The State bears a higher burden to demonstrate harmlessness when the error is of constitutional magnitude. Bridges, 297 Kan. at 1013 (citing Herbel, 296 Kan. at 1110 [“Clearly, the party benefitting from the constitutional error must meet a higher standard to show harmlessness than the standard required in nonconstitu-tional error.”]). Discussion Alans particularly complains that prosecutor Ladner committed misconduct by (1) improperly cross-examining an expert witness for the defense; (2) introducing the concept of “grooming” without evidentiary support and misstating the law by arguing that grooming could establish Alans’ sexual intent; and (3) vouching for the credibility of the State’s witnesses while openly opining about Aldns’ untruthfulness. He claims that the comments were gross and flagrant and demonstrated ill will. We will address each claim of misconduct in turn. Cross-examination of the defense’s expert witness As a defense expert witness, psychologist Nichols testified about the suggestibility of children. She specifically criticized the suggestibility she believed was contained in the Finding Words protocol used by Robbins and Mueller to interview the alleged victims of Alans’ sexual abuse. During recross-examination of Nichols, she and the prosecutor had the following exchange: “Q. [Prosecutor]: You used the term gold standard. Of tire 7 to 28 states who have affirmed Finding Words, were you aware that Finding Words has been called gold standard? “[Defense counsel]: I object. Counsel is testifying. “[Prosecutor]: This is cross-examination. The question is were you aware. “The Court: Overrule. Go ahead. “Q. [Prosecutor]: You may answer. “A. [Nichols]: No, I was not aware that someone called it that. “[Prosecutor]: The case is Mooneyham versus State. Thank you very much.” Alans’ counsel did not further object, and the court dismissed Nichols from the witness stand following the prosecutor’s last statement. Akins argues that tire prosecutor’s comments constitute unsworn testimony to three facts not in evidence: (1) that the Finding Words protocol is the “gold standard”; (2) that a court of law called the Finding Words protocol the gold standard; and (3) that the prosecutor knows more about the Finding Words protocol than expert witness Nichols. In the State’s brief, it contended this was an evidentiary issue unpreserved for appeal. But at oral argument before this court, the State conceded that the statements were misconduct and never should have been made. We readily agree with the State’s concession. Listing but several of the numerous reasons will suffice for our purposes. First, in identifying the Finding Words protocol as the gold standard, the prosecutor was improperly referring to facts that were never in evidence. This prohibition applies to all lawyers, but especially prosecutors. See State v. McCaslin, 291 Kan. 697, 719, 245 P.3d 1030 (2011); Tosh, 278 Kan. at 88; see also Rule 3.4(e) of Kansas Rules of Professional Conduct (KRPC) (2013 Kan. Ct. Annot. 601) (“A lawyer shall not . . . [e] in trial, allude to any matter that . . . will not be supported by admissible evidence.”). And where a prosecutor refers to facts not in evidence, the first prong of the prosecutorial misconduct test is met. State v. Simmons, 292 Kan. 406, 414, 254 P.3d 97 (2011). Second, mentioning a court case as supporting authority in the juiy’s presence essentially implies that this aspect of the prosecutor’s case against Alans already had judicial approval. More specifically, it improperly implies that a court had conclusively established that the Finding Words protocol was not only the “gold standard” but was also therefore unassailable. See In re Care and Treatment of Foster, 280 Kan. 845, Syl. ¶ 4, 127 P.3d 277 (2006) (“It is improper and misconduct for counsel to argue that his or her case or some aspect of it has judicial approval.”). The prosecutor’s citation of the purported authoritative decision—Mooneyham v. State, 915 So. 2d 1102 (Miss. App. 2005)— is additionally troubling because the “gold standard” reference does not appear in the majority opinion. And as Alans accurately observes, the Mississippi Court of Appeals judge authoring this concurring opinion merely noted that the Finding Words protocol has been called the gold standard in North Carolina “practice notes”-—documents that the judge did not describe by author, publisher, or date. See 915 So. 2d at 1108. Additionally, the prosecutor’s comments, together with her citation to Mooneyham as support, improperly implied she was an authority on the Finding Words protocol. In other words, in contrast to die apparently uninformed defense expert witness being cross-examined, the prosecutor showed the jury she knew about the court opinion and its alleged authoritative declaration of the “gold standard.” Cf. Simmons, 292 Kan. at 414 (“More regrettably, the prosecutor’s overall comments implied he was an authority on the Stockholm syndrome and was capable of diagnosing an individual as suffering from this purported condition. He clearly was neither.”). Misconduct is established. Introduction of the “grooming” concept and related arguments Alans next argues that the prosecutor committed misconduct by improperly discussing his alleged grooming of the complainants for future sexual abuse. During her opening statement to the jury, the prosecutor introduced the grooming concept: “[T]he theory of Count 1 is that he came into [M’s] room after she was 14. That summer had die grooming thing, hugging, watching her and grabbing her by the breast. . . .” (Emphasis added.) The prosecutor continued this grooming theme in her opening statement by describing Akins’ conduct as follows: “The grooming continues, watching her. “[There were t]hese grooming things, making the littie girls shave his body at first getting on the toilet, doing his back with the electric razor.” (Emphasis added.) The prosecutor concluded her opening statement by revisiting the grooming concept: “At the close of the case, folks, I will ask in the aftermath that you find him guilty of these counts. That there’s evidence of such power, control, his access, his grooming, the credibility, the corroboration, similarities and differences between the children, compare his private face to his public face, ... I will ask that you find him guilty . . . .” (Emphasis added.) In her closing argument, the prosecutor returned to the theme of Akins’ grooming the complainants for sexual abuse. When addressing the particular issue of Akins’ intent, she stated: “Intent. In the jury instructions you get a law on that. A person intends the ordinary consequences of their willful acts. In some of these counts there is language was this done with sexual intent, with tire intent to arouse or satisfy the sexual desires. What inference, folks, do you draw from his statements in getting into bed with [M] in the morning calling her wifey and cuddling, pinching tire little girls on the nipples and [L] saying mm, mm, mm, asking [L] is [M] on her period? What inference do you draw? Is it a fair inference on tírese facts that he wanted to know when he could get access to that? The sexual intent comes from his grooming them, where on their bodies he was touching, jealousy like a boyfriend, how he touched them, the demonstration of the girís, the rubbing and fondling. There is where you get sexual intent applying the facts to the law.” (Emphasis added.) Akins specifically contends that the State never introduced evidence about grooming, so the concept was introduced without a sufficient evidentiary basis. Akins further argues that, as used by the prosecutor, “grooming” is a psychological term requiring expert testimony. But instead of the prosecutor relying on an expert for diagnosis, reversible error occurred when she essentially made the “grooming diagnosis” herself. Finally, he contends that the prosecutor committed misconduct by misstating the law during closing argument when she argued the jury could rely on grooming to establish Akins’ alleged sexual intent. The State denies that the prosecutor’s comments constituted misconduct. It distinguishes Simmons and State v. Chanthaseng, 293 Kan. 140, 293 P.3d 889 (2011), where we found prosecutorial misconduct based on similar statements involving the Stockholm syndrome and sexual abuse victims’ process of disclosure. The State alleges that the Simmons prosecutor actually attempted to diagnose the victim with Stockholm syndrome and that the Chanthaseng prosecutor suggested the disclosure of abuse by the victims in that case was typical of sexual abuse victims in general. The State contends that, in contrast, Alans’ prosecutor merely used “grooming” in its ordinary sense, and the jury would not have understood it as having a special meaning. So the State argues that no testimony, expert or otherwise, was required to define the term. The State also disagrees that its use of grooming during closing argument in discussing Alans’ sexual intent was erroneous. Although the State referenced grooming as indicative of intent, it argues that the prosecutor was only arguing for a permissible inference from the evidence. It contends it presented sufficient evidence to support a reasonable inference that Akins acted to desensitize his victims to his sexual advances, so it was permissible to use “grooming” to describe his behavior. Under the first step of our misconduct analysis we decide whether the prosecutor’s comments were outside the wide latitude a prosecutor is allowed. Bridges, 297 Kan. at 1012. We reject the State’s argument that Akins’ prosecutor was merely using the word “grooming” as it is commonly understood. And because she introduced this particular concept of grooming without any evidence, her comments necessarily went beyond the latitude allowed in discussing the evidence. Grooming "is a well-known phenomenon in the context of sexual abuse. We dealt with the subject in State v. Raskie, 293 Kan. 906, 269 P.3d 1268 (2012). But we did not squarely address whether introducing grooming evidence required expert testimony. Our Raskie discussion, however, is consistent with tire approaches of other jurisdictions that recognize grooming is a concept that has specific meaning in tire context of sexual abuse. 293 Kan. at 918. And grooming evidence typically requires expert testimony. See, e.g., State v. Berosik, 352 Mont. 16, 23, 214 P.3d 776 (2009) (permitting expert testimony about grooming); State v. Sorabella, 277 Conn. 155, 211-14, 891 A.2d 897 (2006) (same); see also Morris v. State, 361 S.W.3d 649, 659-62 (Tex. Crim. App. 2011) (holding that the phenomenon of grooming children for sexual molestation is an appropriate topic for expert testimony and noting that 10 circuits and 38 states have addressed grooming, with most reaching the same conclusion). Here, the prosecutor used “grooming” repeatedly and in the same context it would have been used had the State sought to introduce the psychological concept through an expert witness. While the State is correct that Akins’ prosecutor did not explicitly purport to make a diagnosis of grooming, the prosecutor in Simmons did not explicitly purport to diagnose the victim with Stockholm syndrome. But as previously noted, that prosecutor “implied he was an authority on the Stockholm syndrome and was capable of diagnosing an individual suffering from [the] purported condition.” 292 Kan. at 414. We held that he was clearly neither and that his comments on the condition were improper because he was asserting personal knowledge of the evidence and arguing facts not in evidence. 292 Kan. at 414. The same essentially can be said in Akins’ case. Likewise, while the State is correct that the prosecutor never explicitly asserted that grooming is typical in sexual abuse cases, this absence does not necessarily mean she intended to use grooming in its everyday sense. We observe she repeatedly argued that Akins groomed the alleged victims in preparation for acts of sexual abuse. And because grooming is a well-known phenomenon in sexual abuse cases, the jury could reasonably infer that the prosecutor was referring to the psychological concept of grooming. Accordingly, the prosecutor’s argument required supporting evidence; without it, the prosecutor was arguing facts not in evidence. As noted, we have consistently found prosecutorial misconduct when a prosecutor argues facts that are not in evidence. See, e.g., Bridges, 297 at 1014; see also Gershman, Prosecutorial Misconduct § 11:32, p. 533 (2d ed. 2012) (“By going beyond the record, the prosecutor becomes an unsworn witness, engages in extraneous and irrelevant argument, diverts the jury from its proper function, and seriously threatens the defendant’s right to a fair trial.”). This prosecutorial practice is troubling “because of jurors’ tendency to overvalue what is effectively unsworn testimony by a highly regarded prosecutor, despite the information’s worthlessness as a matter of law.” Chanthaseng, 293 Kan. at 147. As for the prosecutor’s accompanying argument that Akins’ earlier alleged grooming also satisfies the essential element of sexual intent at tire time of the alleged criminal conduct, we conclude it constituted misconduct. We have held that the prosecutor’s wide latitude in discussing the evidence is qualified by an obligation to accurately state the law. Raskie, 293 Kan. at 917. Here, die prosecutor’s closing argument was a misstatement of the law. Except for battery, the crimes for which the jury convicted him are specific intent crimes. See State v. Brown, 291 Kan. 646, 654-56, 244 P.3d 267 (2011) (holding that attempt, aggravated indecent liberties, and aggravated indecent solicitation are specific intent crimes); State v. Dotson, 256 Kan. 406, 413, 886 P.2d 356 (1994) (noting that indecent liberties is a specific intent crime). We have held that the specific intent required by a statute must simultaneously be present with the proscribed conduct. Brown, 291 Kan. at 654 (citing State v. Richardson, 289 Kan. 118, 121, 209 P.3d 696 [2009]) (defining specific intent crimes as those which identify or require a further particular intent which must accompany the prohibited acts). Here, the prosecutor’s statement implied that Akins’ state of mind during past instances of “grooming” was sufficient to establish the intent required for the crimes he later allegedly committed. But without acknowledging that the intent and conduct must be simultaneously present, it was a misstatement of the law. Comments on the credibility of witnesses Akins’ final allegation of misconduct involves prosecutorial comments on the credibility of witnesses: vouching for tire credibility of the complainants and opining on Akins’ lack of honesty. Specifically, Alans alleges the following statements were impermissible. In her opening statement, the prosecutor introduced the complainants by saying: “[M] is the oldest, [E] is the next, boy. They’ve grown so much over the course of the year since this case came to light. “Jennifer is mild. She is polished. She is articulate. She’s well put together. She manages these kids with a calm competence that is amazing.” Alans asserts that these prosecutorial comments showed her inappropriate personal attachment to the complainants. He argues that the prosecutor then improperly vouched for their credibility during closing arguments: “Each of these girls with their own take on it, with their own point of view, so no embellishment. Yes, they are credible. They are not tainted or they have not been poisoned by the suggestibility that the expert is trying to get you to buy. “[J] is a motor mouth, vomit of information of how many times he was pinching her nipples and where and when and by description, demonstration and by noise. Yes, that’s credible. Such detail.” (Emphasis added.) Finally, Akins argues that during closing arguments the prosecutor also improperly expressed her personal opinion that his testimony was false. “The defense said it didn’t happen at all. Do you buy that? View the volume of sexual contact and the physical evidence that you have here. Was it just accidental? Was he just messing around . . . and this is all just a strange misunderstanding? Not a chance on these facts. His denials. I never touched those kids in a sexual way. His statements I never touched those kids in a sexual way are not credible.” (Emphasis added.) The State denies that these comments constituted prosecutorial misconduct. It notes that the prosecutor repeatedly told the jurors that it was their job to assess the witnesses’ credibility, and it concludes that her comments merely offered the jury an explanation of what it should look for in assessing credibility. The State further argues that the prosecutor s comments were properly accompanied by a discussion of the evidence, and the prosecutor was simply pointing out permissible inferences the jury could make from that evidence. See Chanthaseng, 293 Kan. at 148 (comments on credibility were not misconduct because “[ejach was accompanied by a discussion of the evidence,” and the prosecutor was “merely asking the jury to draw permissible inferences from that evidence”). We reject foe State’s arguments. Akins’, prosecutor directly, and improperly, expressed her personal opinion on the credibility of her own witnesses. State v. Pabst, 268 Kan. 501, 506, 996 P.2d 321 (2000); see also KRPC 3.4(e) (2013 Kan. Ct. R. Annot. 601) (“A lawyer shall not... in trial, . . . state a personal opinion as to . . . foe credibility of a witness . . . .”). At foe outset, foe prosecutor introduced the complainants by offering her opinion as to their maturity and family dynamics. While this alone may not rise to the misconduct level, she worsened its effects and engaged in separate misconduct by giving her personal opinion about the credibility of the three complaining girls, e.g., “Yes, they are credible.” In the context of this particular closing argument, we do not consider this to be a mere contention that based on die evidence presented die jury should infer facts about the girls’ credibility. See State v. Duong, 292 Kan. 824, 830, 257 P.3d 309 (2011). While the prosecutor arguably makes such a contention regarding J because of “such detail” that J provided, the prosecutor reiterates her opinion about this complainant’s veracity with virtually identical, troubling language: “Yes, that’s credible.” See Chanthaseng, 293 Kan. at 148 (citing State v. Finley, 273 Kan. 237, 245-46, 42 P.3d 723 [2002]) (“There is a distinction between . . . proper argument and its twin, argument on die prosecutor’s personal belief or opinion about a witness’s credibility.”). We conclude die prosecutor also committed misconduct by offering her personal opinion about Alans’ credibility. We recognize prosecutors have wide latitude during closing argument to point out inconsistencies in a defendant’s statements and to argue evidence that reflects poorly on a defendant’s credibility. State v. Elnicki, 279 Kan. 47, 63, 105 P.3d 1222 (2005). But a prosecutor may not offer her personal opinion drat the defendant’s testimony was untruthful. Elnicki, 279 Kan. at 63-64; see also Prosecutorial Misconduct § 11:27, p. 526 (“Courts caution prosecutors against characterizing testimony as a lie’ because such categorical and conclu-sory opinions make die prosecutor an unsworn witness and invade die province of the jury to determine credibility.”). Here, the prosecutor’s comments essentially informed the jury that Alans could not be believed. She did not point out inconsistencies in his testimony or argue that specific evidence showed his statements were unworthy of belief. And altiiough she generally referenced the volume of sexual contact and the physical evidence, she also unabashedly opined about his veracity: “His statements I never touched those lads in a sexual way are not credible.” See Chanthaseng, 293 Kan. at 148. Harmlessness analysis With the three instances of prosecutorial misconduct established, we turn to the second analytical step of the misconduct inquiry. See Bridges, 297 Kan. at 1012 (citing State v. Marshall, 294 Kan. 850, 857, 281 P.3d 1112 [2012]). This requires us to determine whether the prosecutors improper comments,were harmless error under the standards of both K.S.A. 60-261 and Chapman. Bridges, 297 Kan. at 1012. We have recently held that when the constitutional and noncon-stitutional error clearly arise from the same acts or omissions, we logically begin our harmlessness analysis with the constitutional error. State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013). We reach this conclusion because if we decide die constitutional error is not harmless and reverse the convictions and sentence, it is unnecessaiy to determine whether the State met the lower standard for harmlessness under K.S.A. 60-261. 296 Kan. at 1111. The misconduct was gross and flagrant. In reviewing the factors upon which Akins relies to argue for reversal, we first consider whether the misconduct was gross and flagrant. See Tosh, 278 Kan. at 93. In determining whether prosecutorial misconduct was gross and flagrant, among the things we have considered are whether the comments were repeated, emphasized improper points, were planned or calculated, or violated well-established or unequivocal rules. State v. Ochs, 297 Kan. 1094, 1103, 306 P.3d 294 (2013) (citing State v. Brown, 295 Kan. 181, 214, 284 P.3d 977 [2012]). We have also considered tire long-standing nature of the rule violated. Brown, 295 Kan. at 214 (citing State v. Kemble, 291 Kan. 109, 121-25, 238 P.3d 251 [2010]). The State conceded at oral argument that the gold standard comments were gross and flagrant. We agree. Among other things, the rule is well-established that attorneys, especially prosecutors, must not comment on any matter not supported by admissible evidence. See KRPC 3.4(e) (2013 Kan. Ct. Annot. 601); see also Tosh, 278 Kan. at 88. And the comments were calculated to emphasize an improper point: that because of a court decision the prosecutor inappropriately cited to the jury, she knew more about the field than the defense expert psychologist she was cross-examining. Cf. Foster, 280 Kan. 845, Syl. ¶ 4 (“It is improper and misconduct for counsel to argue that his or her case or some aspect of it has judicial approval.”). The prosecutor s multiple references to grooming also compel us to decide this particular conduct was gross and flagrant. She mentioned the concept numerous times in her opening and closing arguments. See Ochs, 297 Kan. at 1103 (gross and flagrant conduct can exist when conduct repeated). We also conclude that the prosecutor s comments on the credibility of the witnesses constituted gross and flagrant misconduct. Her credibility opinions broke well-established and long-standing rules regarding the latitude afforded prosecutors in making arguments. See, e.g., Pabst, 268 Kan. at 507 (recognizing rules against a prosecutor’s improper comments on witness credibility in 2000). Further, these opinions were often repeated. See Ochs, 297 Kan. 1094, Syl. ¶ 18. The misconduct was motivated hy ill will. In determining whether prosecutorial misconduct was motivated by ill will, among the things we have considered is whether the conduct was deliberate or in apparent indifference to a court’s ruling. Marshall, 294 Kan. at 862; see also Prosecutorial Misconduct § 14:5, pp. 602-03 (“Other factors considered by courts in determining harmfulness are whether the prosecutor’s misconduct was deliberate, related to a crucial issue in the trial, or was followed by a prosecutorial apology.”); cf. Prosecutorial Misconduct § 10:51, p. 458 (a prosecutor’s failure to obey court rulings increases the likelihood of reversal). In an overlap with determining gross and flagrant conduct, this court has also considered whether the conduct was repeated when determining whether comments were motivated by ill will. Ochs, 297 Kan. 1094, Syl. ¶ 19. The State concedes that the gold standard comments were motivated by prosecutorial ill will. And we agree. Cf. Simmons, 292 Kan. at 418 (among factors supporting ill will were “absolutely no effort to introduce evidence on the” Stockholm syndrome issue, and prosecutor appeared to make the definition unassailable by openly agreeing with juror s definition). We easily conclude that deliberately giving a jury the impression that a cited judicial opinion is virtually dispositive of the issue—when it is merely a concurring opinion from another jurisdiction that simply cites to “Notes on Use” from yet another jurisdiction—is far below any traditional concepts of good intentions or good will. Moreover, such deliberate action related to a crucial issue in a trial without any physical evidence of the claimed abuse—weighing the credibility of all die complaining witnesses against the credibility of the defense expert witness who had criticized the methods used to interview drem. Cf. Marshall, 294 Kan. at 863-65. We also conclude the prosecutor s references to grooming indicate prosecutorial ill will. As in Simmons, here the prosecutor not only made repeated references to a psychological or medical condition, but she also did so without any attempt to introduce evidence on the issue. See 292 Kan. at 418. Despite the State’s claim that it was using the word grooming in the ordinary sense, there was no way for the jury to determine whether the prosecutor was doing so or instead discussing the psychological concept of grooming. Consequendy, the prosecutor was effectively introducing die psychological concept in violation of rules governing argument about facts not in evidence. See Chanthaseng, 293 Kan. at 146-47; Simmons, 292 Kan. at 418. We also conclude that die prosecutor s comments on the witnesses’ credibility were motivated by ill will. Although she did remind the jury that weighing the credibility of the witnesses was ultimately its responsibility, she then directly contradicted her admonition by repeatedly stating her personal opinion as to the witnesses’ credibility. She opined all three complaining girls were credible and Aldns was not. See Ochs, 297 Kan. at 1103 (whether die conduct was repeated is considered when determining whether comments were motivated by ill will). The misconduct influenced the jury’s decision. We must ultimately determine whether these three instances of prosecutorial misconduct were harmless under Tosh’s third factor, i.e., whether the State has proven under the constitutional and statutory harmlessness standards that the misconduct did not affect the jury’s decision. In considering this factor, we review the amount of the evidence of Akins’ guilt. See Simmons, 292 Kan. at 420 (citing Tosh, 278 Kan. at 85). The State bears the burden of proving the misconduct was harmless error. Herbel, 296 Kan. at 1110. In contending that the misconduct did not deny Aldns a fair trial, the State argues that the juiy was instructed to disregard any counsel statements that were not supported by the evidence. The State also contends the prosecutor’s gold standard comments could not have affected the jury’s decision because the State’s witnesses Mueller and Robbins properly testified about the reliability of the Finding Words protocol. As for the prosecutor’s comments on the credibility of the witnesses, the State contends this was fair argument because the prosecutor reminded the jury that it was ultimately its responsibility to assess the credibility of all witnesses. Finally, the State notes that the three instances of misconduct, even when combined, comprise only a small portion of the trial. The State argues that even if some of the comments were misconduct, it presented sufficient evidence to prove beyond a reasonable doubt that the misconduct did not affect the outcome in this case. See State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (The error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record.). Akins responds that each instance of misconduct denied him a fair trial, requiring independent reversal of his convictions and sentence. Alans first asserts that the evidence presented against him was not overwhelming. See Bridges, 297 Kan. at 1012 (State must show whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.). Specifically, he points out that no complaints were voiced until after he separated from the children’s mother, and M’s diary—which was entered into evidence—made no mention of molestation until after the separation. Akins further emphasizes that the lack of any physical evidence, the complainants’ admitted dislike of him, the jury’s requested read back of the prosecutor’s closing argument, his acquittal on four counts after 2 days of jury deliberation, and his consistent and categorical denials all demonstrate this was a close case. Akins also argues that the jury was never specifically instructed to disregard the three instances of misconduct. In sum, Alans argues that the State cannot meet its burden of showing that the misconduct did not affect the outcome of the case. We agree with Akins that the prosecutor’s actions denied him a fair trial, and therefore constitute reversible error. The misconduct was not ameliorated by evidence which was so overwhelming that the misconduct could not have influenced the jury’s decision. There was no physical evidence of Alans’ guilt, and he consistently and steadfastly maintained that he was innocent. So the jury was charged with deciding the case based on the testimony of witnesses, making their credibility of paramount importance. With credibility having such importance, we conclude any strength of the State’s case was bolstered by the prosecutor’s opinions on the credibility of numerous witnesses. And her witnesses’ credibility—-and hence the strength of her case—was reinforced by her comments that the Finding Words protocol served as the gold standard for interviewing child victims of sexual abuse. Moreover, her citation of the Mooneyham case in support of her declaration essentially showed a lay jury that a court had already authoritatively pronounced the Finding Words protocol to be an unmatched interview method—contrary to defense expert witness Nichols’ criticisms of the protocol. And by showing Nichols was unfamiliar with Mooneyham and its purported holding, Nichols’ testimony as a knowledgeable expert questioning the reliability of the interviews was even further diluted. The integral part that the gold standard comments played in improperly fortifying the credibility of the complaining witnesses’ testimony and diluting Nichols’ testimony is suggested by an assertion taken from the prosecutor’s closing argument: “Each of these girls with their own take on it, with their own point of view, so no embellishment. Yes, they are credible. They are not tainted or they have not been poisoned by the suggestibility that the expert is trying to get you to buy.” (Emphasis added.) Similarly, the introduction of the grooming concept without any supporting evidence and the accompanying misstatement of the law regarding grooming as proof of sexual intent very well could have tipped the jury’s decision. And, despite the judge’s instruction to disregard statements not supported by the evidence, this generalized instruction was insufficient to cure the comments. The instruction did not specifically address the instances of misconduct and left it for the jurors to determine what comments were supported by evidence and what comments were not. Considering tire overall standard of review for determining the magnitude of constitutional error as articulated in Ward, 292 Kan. 541, Syl. ¶¶ 5-6, we specifically conclude the State has failed to meet its burden to prove beyond a reasonable doubt that the misconduct did not affect tire outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict. See 292 Kan. 541, Syl. ¶ 6. Given this holding, we need not determine whether the State has met its burden of showing harmless error under the lower standard articulated in K.S.A. 60-261. See Herbel, 296 Kan. at 1111. Because the prosecutor’s misconduct denied Akins a fair trial, we reverse all of Akins’ convictions and his sentences and remand this matter to the district court for a new trial. Akins claims the district court committed further error. These claims could now be disregarded because of our reversal and remand on prosecutorial misconduct grounds. We address some of them below, however, to supply guidance because they could arise in a retrial. For this reason, any argument by the State that the claims were not preserved for appeal, or that Alans’ rights, if violated, do not warrant reversal, are now moot. See Foster, 280 Kan. at 861. Issue 2: The district court erroneously excluded testimony about prior false allegations of sexual abuse because the witnesses were related to Akins. Akins argues that the district court erroneously excluded testimony he proffered from his family that M had previously made false allegations of sexual abuse against her own father. The State responds that the evidence was properly excluded: if not for the “family witnesses” rationale relied upon by the court, then for several others. Standard of review We use a multistep analysis when reviewing a district court’s decision to exclude evidence. Bridges, 297 Kan. at 995 (citing State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 [2010]). First, we determine whether the evidence is relevant, i.e., both probative and material. 297 Kan. at 995-96 (citing K.S.A. 60-401[b]; State v. Martinez, 290 Kan. 992, 1009, 236 P.3d 481 [2010]). We review the district court’s conclusion of whether evidence is probative for an abuse of discretion. But we review the determination of materiality de novo. Shadden, 290 Kan. at 817 (citing State v. Reid, 286 Kan. 494, 507-09, 186 P.3d 713 [2008]). For relevant evidence, our next step requires us to determine whether the district court applied the correct legal principles, and we review that decision de novo. The third step requires us to review how the district court applied the applicable rule or principle. Bridges, 297 Kan. at 996 (citing Shadden, 290 Kan. at 817). Depending on the rule being applied, this court reviews the district court’s application of the pertinent rule either for an abuse of discretion or de novo because “[s]ome rules and principles grant the district court discretion, while others raise matters of law.” 297 Kan. at 996 (citing Shadden, 290 Kan. at 817). Here, the district court concluded that the disputed testimony was inadmissible “as a matter of law,” a decision which we review de novo. Discussion The State moved in limine to exclude any evidence that the complainants had been sexually abused in the past. Alans responded that he had no intention of introducing evidence of past abuse but that he did intend to introduce testimony that Jennifer or M, or both, had falsely accused M’s biological father of sexual abuse. Both parties agreed that testimony about past accusations was not covered by Kansas’ rape shield law, K.S.A. 21-3525. But the State sought to exclude the testimony as improper character evidence because Alans sought to use specific incidents of conduct to prove that Jennifer and M are dishonest. The State argued that dishonesty is a character trait, and the use of specific instances to prove dishonesty is barred by K.S.A. 60-422(d). Alans responded that testimony about Jennifer’s and M’s prior accusations is permissible impeachment evidence to show a witness’ bias, prejudice, or ulterior motive. Alans argued further that he was entitled to introduce the testimony under the Sixth Amendment’s Confrontation Clause because it formed an integral part of his defense. Because Alans denied all of the allegations against him, he argued that Jennifer’s and M’s credibility was a central issue in the trial. Therefore, Alans argued, exclusion of testimony that they falsely accused another person of sexual abuse would prevent him from asserting an essential part of his defense. Akins concluded that even if that evidence was inadmissible under statutory eviden-tiary rules, those rules must bend to his confrontation right. Alans proffered testimony from four people, all of whom were related to him: Alans’ father, Mike Alans, Sr.; Alans’ stepmother, Marsha Akins; Akins’ cousin, Christena Weber; and Alans’ paternal half-sister, Angelia Howard. Akins proffered that each witness would testify that Jennifer or M had said that either M’s biological father committed sexual abuse, or that they had falsely accused him of doing so. Alans’ father, a former minister, would have particularly testified that during informal counseling sessions with M and Jennifer, each independently told him M had accused her biological father of sexually abusing her and later recanted that accusation. According to Akins’ father, M explained she had made up the story because she was angry at her own father for leaving the family. According to die prosecutor, Jennifer and M steadfastly denied ever maldng false allegations against M’s biological father. The State argued that the proffered witnesses’ testimony was unreliable because all of the witnesses were related to Alans. Further, the State noted that there was no third-party corroboration by witnesses unrelated to Akins and that no person reported the alleged accusations to law enforcement. According to the State, without independent corroboration that the accusations were actually made, the testimony should be excluded. The district court excluded the proffered testimony because the witnesses were related to Akins and defense counsel failed to establish by “independent evidence” that prior accusations were made. It relied on State v. Penn, 41 Kan. App. 2d 251, 201 P.3d 752 (2009). In Penn, the Court of Appeals held that the defendant had failed to lay proper foundation for the admission of reputation or opinion testimony that the complainant was dishonest. 41 Kan. App. 2d at 273-74. Drawing from Penns lack of foundation analysis, the district court held that specific instances of conduct are admissible to prove character only if the proponent has independent evidence other than testimony by witnesses who are related to the defendant. The court noted that things such as reports to a third party would satisfy the independent evidence requirement. But here, such evidence was missing. We conclude the district court erred by excluding testimony of Jennifer s and M’s past allegations of sexual abuse by M’s father based solely on the witnesses’ relationship with Akins. K.S.A. 60-407(a) provides that “every person is qualified to be a witness.” And a witness’ familial relationship with a party, or some other potential biases, is not grounds for excluding the witness’ testimony. The family relationship only goes to the weight of the evidence, i.e., credibility of the witness’ testimony. See State v. Lewis, 252 Kan. 535, 537, 847 P.2d 690 (1993). Accordingly, the district court should not have required Alans to provide corroboration before admission of his evidence solely because it was composed of testimony of four family members. If the testimony is admitted at retrial, the State will be permitted to question the witnesses about their relationship with Akins because “ ‘[b]ias, interest, or improper motives of a witness may always be shown in order to place the witnesses’ testimony in proper perspective.’ ” State v. Abu-Fakher, 274 Kan. 584, 600-01, 56 P.3d 166 (2002) (quoting State v. Bowman, 252 Kan. 883, Syl. ¶ 1, 850 P.2d 236 [1993]). We do not reach the issue of whether the testimony is ultimately inadmissible on other grounds argued by the State. The record on appeal is insufficient for this court to make that determination. We only conclude that the district court erred by excluding the testimony based solely on the witnesses’ relationship with Akins. So our decision should not be interpreted as determinative on any other evidentiary basis. Issue 3: The trial court should use written unanimity and multiplicity jury instructions on remand. Alans argues that tire district court erred in its instructions to the jury regarding unanimity and multiplicity. Without a change to the State’s procedures at retrial, this issue will likely arise again. So we will briefly address why written instructions regarding unanimity and multiplicity are a better practice than an oral election in this case. Standard of review The parties do not dispute that this is a “multiple acts” case, i.e., a case where “ ‘several acts are alleged and any one of them could constitute the crime charged.’ ” State v. Voyles, 284 Kan. 239, 244, 160 P.3d 794 (2007) (quoting State v. Kesselring, 279 Kan. 671, 682, 112 P.3d 175 [2005]). In multiple acts cases, the jury must unanimously agree which specific act constitutes the crime. See K.S.A. 22-3421; State v. King, 297 Kan. 955, 977, 305 P.3d 641 (2013). And, to ensure jury unanimity in multiple acts cases, “the trial court must give the jury a unanimity instruction, or the State must elect the particular act it relies on for conviction.” King, 297 Kan. at 978 (citing Voyles, 284 Kan. at 244-45). We review the court’s failure to give a unanimity jury instruction under a clearly erroneous standard where an objection to, or request for, a certain instruction was not made at trial. State v. Bailey, 292 Kan. 449, 455, 255 P.3d 19 (2011). An instruction is clearly erroneous if the appellate court “ ‘is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ ” 292 Kan. at 455 (quoting State v. Martinez, 288 Kan. 443, 451-52, 204 P.3d 601 [2009]). Discussion Akins’ jury was instructed about the need for unanimity only regarding the charges of aggravated indecent liberties. But in addition to these charges, the State also relied on multiple acts to prove the numerous counts charging Akins with indecent liberties, indecent solicitation, and aggravated indecent solicitation. While the State did make an oral election to the jury as to the acts upon which it was relying for the charges of aggravated indecent liberties and indecent solicitation, it made no oral election for the charges of aggravated indecent solicitation. Akins argues that the oral elections and failure to elect were clearly erroneous, requiring reversal. But tire State contends that its oral elections satisfied the “elect or instruct” standard of Voyles. The State admits that its failure to elect or instruct on the charge of aggravated indecent solicitation was erroneous, and as noted, its contention that the error was harmless is now moot. As this case demonstrates, using written unanimity jury instructions in a multi-count and multi-charge case is a much better practice than using an oral election. Against Akins, the State submitted 19 counts to the jury, including lesser-included offenses, alternative counts, and sub-counts. And the alleged conduct supporting the charges happened in multiple places, with four different victims and over a period of approximately 7 months. During deliberations, the jury asked the court for further clarification about which incident the State relied on for which count. Written unanimity instructions containing those specifications would have clarified this complex case for the jury. Accordingly, the use of such written unanimity instructions specifying the multiple act counts is highly recommended on remand. Issue 4: Akins’jury polling argument is moot. Alans argues that the district court erred by failing to comply with the jury-polling statute, which provides in relevant part that “inquiry [shall] be made whether [the verdict] is the jury’s verdict.” K.S.A. 22-3421. Specifically, Akins argues that tire.district court failed to comply with the statutory obligation because it only asked if anyone desired that the jury “be polled,” and did not ask the jury whether this was its verdict. Alans did not object to the district court’s failure. Given that Alans raises this issue on appeal, the issue—and his failure to object—probably will not arise on remand because the district court will closely follow the statute. Issue 5: Aldus’ argument that cumulative error denied him a fair trial is moot. Alans argues that the combination of prosecutorial misconduct, erroneous evidentiary rulings, and erroneous jury instructions constitutes cumulative error that denied him a fair trial. Because we reverse and remand on the misconduct, and because we have briefly addressed the other two issues for guidance on remand, we need not address the cumulative error argument. Issue 6: Akins’ argument that his sentences are unconstitutionally disproportional to the crimes charged is moot. Akins argues that his two presumptive life sentences are unconstitutional under Section 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution, made applicable to the states through the Due Process Clause of the Fourteenth Amendment. But again, because a new jury may not convict on the requisite crimes, or, if so, the judge may not impose such sentences, this argument is moot. Reversed and remanded for new trial.	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Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied Unpublished	[ -99, 105, -55, 63, -88, -95, 58, 30, -62, -113, 103, 119, -49, -30, -116, 89, -83, 103, -91, 91, 93, 23, 127, -27, 98, 91, -94, -11, -15, 111, -2, -112, 76, 24, -37, 93, -58, -120, -115, 88, -122, 7, -104, -116, -111, 65, 36, 35, 104, 15, 89, -44, -15, 46, -98, 67, -56, 102, -57, -83, -63, -35, -111, 31, -65, 20, -62, 85, -100, 11, -62, 102, 16, 48, 53, -20, 114, -90, -41, 85, 7, -7, -80, 33, 10, 32, -68, -91, 32, 44, 15, 94, 13, -92, -5, 9, 75, 57, -46, -35, 16, -108, 39, 62, 98, -60, 15, -88, 46, -1, -26, -93, 31, 40, 12, 9, -5, -42, 16, 49, -49, 53, -40, -78, 53, -118, -42, 53 ]
Granted. Unpublished	[ -107, 121, -99, 31, -86, 33, 58, -98, -58, -113, 38, 127, -49, -21, 28, -47, -89, 103, 20, 83, -20, 3, 119, -43, -30, 83, -77, 91, 81, 102, -66, 24, 78, -96, -102, 61, -26, -56, -51, -56, -126, 21, -120, -116, -48, 65, 36, 35, -55, 15, 81, 84, 112, -86, 30, 65, -52, 62, -57, -115, 81, -23, -99, 67, -1, -108, -126, 85, 60, -53, -64, -18, -103, 56, 5, -86, 114, -26, -126, 87, 11, -5, -80, 4, 26, 112, -68, -3, -96, -76, 7, -50, -83, -124, 9, 73, 105, 121, 26, 57, -120, 20, 35, 56, 99, -127, 61, 34, 43, -33, 102, -93, 95, 40, 12, 11, -5, 63, 35, 55, -57, 118, -52, -14, 61, -126, -62, 55 ]
Denied Unpublished	[ -99, 105, -55, 63, -88, -95, 58, 30, -62, -113, 103, 119, -49, -30, -116, 89, -83, 103, -91, 91, 93, 23, 127, -27, 98, 91, -94, -11, -15, 111, -2, -112, 76, 24, -37, 93, -58, -120, -115, 88, -122, 7, -104, -116, -111, 65, 36, 35, 104, 15, 89, -44, -15, 46, -98, 67, -56, 102, -57, -83, -63, -35, -111, 31, -65, 20, -62, 85, -100, 11, -62, 102, 16, 48, 53, -20, 114, -90, -41, 85, 7, -7, -80, 33, 10, 32, -68, -91, 32, 44, 15, 94, 13, -92, -5, 9, 75, 57, -46, -35, 16, -108, 39, 62, 98, -60, 15, -88, 46, -1, -26, -93, 31, 40, 12, 9, -5, -42, 16, 49, -49, 53, -40, -78, 53, -118, -42, 53 ]
Denied Unpublished	[ -99, 105, -55, 63, -88, -95, 58, 30, -62, -113, 103, 119, -49, -30, -116, 89, -83, 103, -91, 91, 93, 23, 127, -27, 98, 91, -94, -11, -15, 111, -2, -112, 76, 24, -37, 93, -58, -120, -115, 88, -122, 7, -104, -116, -111, 65, 36, 35, 104, 15, 89, -44, -15, 46, -98, 67, -56, 102, -57, -83, -63, -35, -111, 31, -65, 20, -62, 85, -100, 11, -62, 102, 16, 48, 53, -20, 114, -90, -41, 85, 7, -7, -80, 33, 10, 32, -68, -91, 32, 44, 15, 94, 13, -92, -5, 9, 75, 57, -46, -35, 16, -108, 39, 62, 98, -60, 15, -88, 46, -1, -26, -93, 31, 40, 12, 9, -5, -42, 16, 49, -49, 53, -40, -78, 53, -118, -42, 53 ]
Denied Unpublished	[ -99, 105, -55, 63, -88, -95, 58, 30, -62, -113, 103, 119, -49, -30, -116, 89, -83, 103, -91, 91, 93, 23, 127, -27, 98, 91, -94, -11, -15, 111, -2, -112, 76, 24, -37, 93, -58, -120, -115, 88, -122, 7, -104, -116, -111, 65, 36, 35, 104, 15, 89, -44, -15, 46, -98, 67, -56, 102, -57, -83, -63, -35, -111, 31, -65, 20, -62, 85, -100, 11, -62, 102, 16, 48, 53, -20, 114, -90, -41, 85, 7, -7, -80, 33, 10, 32, -68, -91, 32, 44, 15, 94, 13, -92, -5, 9, 75, 57, -46, -35, 16, -108, 39, 62, 98, -60, 15, -88, 46, -1, -26, -93, 31, 40, 12, 9, -5, -42, 16, 49, -49, 53, -40, -78, 53, -118, -42, 53 ]
Denied Unpublished	[ -99, 105, -55, 63, -88, -95, 58, 30, -62, -113, 103, 119, -49, -30, -116, 89, -83, 103, -91, 91, 93, 23, 127, -27, 98, 91, -94, -11, -15, 111, -2, -112, 76, 24, -37, 93, -58, -120, -115, 88, -122, 7, -104, -116, -111, 65, 36, 35, 104, 15, 89, -44, -15, 46, -98, 67, -56, 102, -57, -83, -63, -35, -111, 31, -65, 20, -62, 85, -100, 11, -62, 102, 16, 48, 53, -20, 114, -90, -41, 85, 7, -7, -80, 33, 10, 32, -68, -91, 32, 44, 15, 94, 13, -92, -5, 9, 75, 57, -46, -35, 16, -108, 39, 62, 98, -60, 15, -88, 46, -1, -26, -93, 31, 40, 12, 9, -5, -42, 16, 49, -49, 53, -40, -78, 53, -118, -42, 53 ]
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The opinion of the court was delivered by Rosen, J.: Armando Nunez was convicted of rape in violation of K.S.A. 21-3502(a)(l)(A) (defining rape as “[sjexual intercourse with a person who does not consent to the sexual intercourse” under circumstances “[w]hen the victim is overcome by force or fear”). On appeal before the Court of Appeals, he argued that die phrase “force or fear” in K.S.A. 21-3502(a)(l)(A) establishes alternative means of committing rape, requiring that the State present sufficient evidence of both force and fear. Nunez conceded on appeal that the State presented sufficient evidence of force, but he argued that the State failed to present evidence establishing that the victim was overcome by fear. Accordingly, he argued that there was insufficient evidence to support the rape conviction. The Court of Appeals reviewed this court’s decisions in State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994), and State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), and determined that based on the alternative means analysis applied in those cases concerning the phrase force or fear, it was unclear whether tire phrase should be construed as establishing a single means or alternative means of committing rape. The Court of Appeals ultimately determined, however, that this issue need not be decided definitively in this case because it viewed the evidence presented at Nunez’ trial as establishing that the victim was overcome by both force and fear. Therefore, the court affirmed Nunez’ rape conviction. State v. Nunez, No. 102,377, 2011 WL 2191686 (Kan. App. 2012) (unpublished opinion). We granted Nunez’ petition for review to address the apparent confusion caused by Timley and Wright. Based on our decision in State v. Brown, 295 Kan. 181, 194, 200, 284 P.3d 977 (2012), and the cases following Brown, we conclude that the phrase force or fear merely presents options within a means and, accordingly, including this language in the jury instruction on rape did not malee this an alternative means case triggering concerns of jury unanimity. Because sufficient evidence of force was presented at Nunez’ trial, we affirm his rape conviction. See, State v. Brooks, No. 102,452, this day decided. Facts Nunez married M.N. when she was 14 years old. They were married for approximately 8 years, during which time they had two children. They eventually divorced and lived apart for 2 months but then resumed living together and had a third child, a daughter. Despite living together and having a third child, the couple remained divorced. On the morning of January 21,2007, M.N. was at home sleeping in her bedroom. Her daughter was sleeping in a crib next to the bed. M.N. was awakened by the sound of Nunez coming home that morning and playing loud music. Eventually, M.N. went back to sleep. Later, M.N. was again awakened when Nunez came into her bedroom and told her he wanted to have sex. M.N. told him no. Nunez proceeded to take off his clothes and then started to forcibly remove M.N/s clothes while she fought with him. Eventually, Nunez began having sexual intercourse with M.N. M.N. tried pushing Nunez away, but she was unable to do so. While M.N. was struggling with Nunez, their daughter awoke in her crib. M.N. told Nunez that their daughter was awake and watching them. Nunez stopped and M.N. got up from the bed, gathered her clothes, and ran into the bathroom. Nunez followed M.N. into the bathroom and forced her to the floor. According to M.N., as she struggled against him, Nunez lifted her legs up and penetrated her anus with his penis. While in the bathroom, M.N. cried out loudly, conveying, according to her, that she was “very scared.” At this point, Nunez let go of M.N., and M.N. then got up from the floor and eventually called the police. They arrived 10 minutes later. Through a friend who acted as her interpreter, M.N. told the police that Nunez had vaginal and anal intercourse with her against her will in the master bedroom and bathroom. Nunez was taken into custody and transported to the law enforcement center. With the assistance of an interpreter, a detective with the Garden City Police Department conducted an interview of Nunez. During the interview, Nunez said that M.N. was angry at him because he wanted to have “relations” with her and she did not want to. Notably, he admitted to taking her clothes off and forcing her to have sexual relations with him. He stated the incident started in the bedroom and finished in the bathroom. When asked whether he inserted his penis into M.N/s anus, Nunez said he might have. Nunez’ case proceeded to a juiy trial on one count of rape in violation of K.S.A. 21-3502(a)(l)(A)—based on his alleged actions in the bedroom—and one count of aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(3)(A)—-based on his alleged actions in the bathroom. The jury found Nunez guilty of rape but acquitted him of aggravated criminal sodomy. The district court sentenced Nunez to 176 months’ imprisonment. After the Court of Appeals affirmed Nunez’ conviction, he filed a timely petition for review which this court granted. Analysis In Timley, this court, quoting State v. Kitchen, 100 Wash. 2d 403, 410, 756 P.2d 105 (1988), stated: “ ‘In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means/ ” Timley, 255 Kan. at 289. Subsequently, in Wright this court held that appellate courts should apply a super-sufficiency of the evidence test in alternative means cases. Under this test, the State must present sufficient evidence to permit a jury to find each means of committing the crime beyond a reasonable doubt. Therefore, when the jury is instructed on alternative means of committing a single crime and the State fails to present sufficient evidence to support each means, reversal is required. 290 Kan. at 202-03. Conversely, if the jury was not instructed on alternative means but merely received instructions on “options within a means,” then the lack of evidence on one of the options will not require reversal. See Brown, 295 Kan. at 196-98; Wright, 290 Kan. at 203. The above-noted rules shape Nunez’ argument on appeal. He argues that the phrase force or fear in K.S.A. 21-3502(a)(l)(A) establishes alternative means of committing rape, requiring the State to present sufficient evidence of both force and fear at trial. Like he did before the Court of Appeals, Nunez concedes that the State presented sufficient evidence that M.N. was overcome by force. But he contends that the State failed to present sufficient evidence that she was overcome by fear. He concedes that there was evidence presented at trial indicating that M.N. was scared when she was in the bathroom. But he contends that this evidence cannot be considered in affirming his rape conviction because the bathroom incident took place after the alleged rape—occurring in the bedroom—was complete. In order to address Nunez’ argument, we must first determine whether tire phrase force or fear establishes alternative means of committing rape, resulting in the application of the super-sufficiency of the evidence test. After addressing this issue, we can then determine whether the State presented sufficient evidence to convict Nunez of rape as defined in K.S.A. 21-3502(a)(l)(A). Recently, we held in Brown that appellate courts must first determine whether the jury was presented with alternative means on a charge before it applies the super-sufficiency requirement. 295 Kan. at 194. “Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means of committing a crime, raise questions of law reviewable de novo on appeal.” State v. Britt, 295 Kan. 1018, Syl. ¶ 1, 287 P.3d 905 (2012). In Brown, this court stated: “In examining legislative intent, a court must determine for each statute what the legislature’s use of a disjunctive ‘or’ is intended to accomplish. Is it to list alternative distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and, in some statutes, a causation element? Or is it to merely describe a material element or a factual circumstance that would prove the crime? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. But merely describing a material element or a factual circumstance that would prove the crime does not create alternative means, even if the description is included in a jury instruction.” 295 Kan. at 194. In Brown, this court discussed some guideposts for determining whether the legislature intended to create alternative means as opposed to merely options within a means. The Brown court noted that in conducting this analysis and determining the legislature’s intent, ordinary rules of statutory construction apply. 295 Kan. at 193-94. In addition, “[tjypically... a legislature will signal its intent to state alternative means through structure, separating alternatives into distinct subsections of the same statute.” 295 Kan. at 196 (citing State v. Smith, 159 Wash. 2d 778, 784-86, 154 P.3d 873 [2007]). However, the Brotan court went on to say: “Regardless of such subsection design, ... a legislature may list additional alternatives or options within one alternative means of committing the crime. But these options within an alternative do not constitute further alternative means themselves if they do not state additional and distinct ways of committing the crime, that is, if they do not require proof of at least one additional and distinct material element. Rather they are only options within a means if. . . their role is merely to describe a material element or to describe the factual circumstances in which a material element may be proven. [Citation omitted.]” 295 Kan. at 196-97. With these guidelines in mind, it is helpful to look at the structure of K.S.A. 21-3502 before examining the specific language of subparagraph (a)(1)(A). K.S.A. 21-3502(a) describes the various' acts that constitute rape. The statute states: “(a) Rape is: (1) Sexual intercourse with a person who does not consent to the sexual intercourse, under any of tire following circumstances: (A) When the victim is overcome by force or fear; (B) when the victim is unconscious or physically powerless; or (C) when the victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender; “(2) sexual intercourse with a child who is under 14 years of age; “(3) sexual intercourse with a victim when the victim’s consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a medically or therapeutically necessaiy procedure; or “(4) sexual intercourse with a victim when the victim’s consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a legally required procedure within the scope of the offender’s authority.” (Emphasis added.) K.S.A. 21-3502(a) is divided into four subsections, each subsection addressing a scenario that would constitute rape. Subsection (a)(1) proscribes the general act of having “sexual intercourse with a person who does not consent to the sexual intercourse” under circumstances which are divided into three subparagraphs. The language at issue in this case, “[w]hen the victim is overcome by force or fear,” is contained within the first subparagraph and is separated from the other circumstances constituting rape under subsection (a)(1) (i.e., “when the victim is unconscious or physically powerless,” or “when the victim is incapable of giving consent [for other various reasons]”)- See K.S.A. 21-3502(a)(l)(A), (B), (C). The structure of subsection (a)(1) suggests that the legislature intended for subparagraphs (A), (B), and (C) to constitute three alternative means of committing rape when the victim does not consent to having sexual intercourse. As mentioned above, this court explained in Brown that options listed within a single subsection of a statute do not state alternative means if the language merely defines other statutory language in a way that elaborates on or describes a material element or describes factual circumstances that prove the crime. 295 Kan. at 196-97. In Brown, the statutory language defining aggravated indecent liberties with a child stated in one subsection that the crime was committed by “any lewd fondling or touching of either a child who is under 14 years of age or the offender ‘done or submitted to with the intent to arouse or satisfy the sexual desires of either the child or the offender, or both.’ ” 295 Kan. at 201. Brown argued that the language “either the child or the offender, or both” created alternative means of committing the crime, but this court found that the language created options within a means instead. 295 Kan. at 201-02. The court concluded that the language was “merely descriptive of the types of factual circumstances that may prove the distinct, material element of intent to arouse or satisfy sexual desires, that is, the mens rea required for commission of the offense.” 295 Kan. at 201; see State v. Cheffen, 297 Kan. 689, 699, 702, 303 P.3d 1261 (2013) (concluding that the phrase “in the commission of, attempt to commit, or flight from an inherently dangerous felony” did not create alternative means of committing felony murder); State v. Ultreras, 296 Kan. 828, 850, 295 P.3d 1020 (2013) (concluding that the phrases “great bodily harm to another person or disfigurement of another person” and “bodily harm to another person with a deadly weapon or in any manner whereby great bodily harm, disfigurement or death can be inflicted” did not create alternative means of committing aggravated battery); State v. Haberlein, 296 Kan. 195, 208-09, 290 P.3d 640 (2012) (concluding that the phrases “force, threat, or deception” and “to facilitate flight or tire commission of any crime” did not create alternative means of committing kidnapping or aggravated kidnapping); Britt, 295 Kan. at 1026-27 (concluding that the phrase “any penetration of the female sex organ by a finger, the male sex organ or any object” contained within definition of sexual intercourse did not create alternative means of committing rape); State v. Burns, 295 Kan. 951, 962-64, 287 P.3d 261 (2012) (concluding that the phrase “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia” contained within definition of sodomy did not create alternative means of committing aggravated criminal sodomy), overruled on other grounds by State v. King, 297 Kan. 955, 305 P.3d 641 (2013); State v. Rojas-Marceleno, 295 Kan. 525, 546-48, 285 P.3d 361 (2012) (concluding that the phrase “to commit or submit to an unlawful sexual act” did not create alternative means of committing aggravated indecent solicitation of a child). Similarly, the statutory language “[w]hen a victim is overcome by force or fear” does not present two alternative means of committing rape. Rather, the phrase force or fear, like the language at issue in Brown, merely describes a factual circumstance that may prove a distinct, material element of rape—namely, having non-consensual sexual intercourse with a victim who is “overcome.” In other words, the actus reus of K.S.A. 21-3502(a)(l)(A) is “to overcome,” and the phrase force or fear merely describes this material element. See Brown, 295 Kan. at 196-97. In accordance with our holding in State v. Brooks, No. 102,452, this day decided, we conclude that force or fear are not alternative means but options within a means, and the inclusion of this language in the jury instructions did not make this an alternative means case triggering concerns of jury unanimity (i.e., evidence of either force or fear is sufficient to sustain Nunez’ rape conviction under K.S.A. 21-3502[a][l][A]). It should be noted that in Timley, the defendant argued that the trial court erred in instructing the jury that it could find him guilty of rape based on the victims being overcome by either force or fear. The defendant argued that instructing the juiy in this manner deprived him of a unanimous verdict because some jurors may have found that the victims were overcome by force while other jurors may have found that the victims were overcome by fear. The defendant, however, mischaracterized this issue as a “multiple acts” issue instead of an alternative means issue. Despite this error, the Timley court applied an alternative means analysis to the defendant’s argument and rejected the argument. The court stated: “In his appellate brief, Timley’s counsel readily points out that there was evidence from which the jury could determine that each sexual act was the result either of force, based on Timley’s choking the victims, or of fear, based on the threats Timley made to the victims. There was sufficient evidence, viewed in the light most favorable to the prosecution, that a rational factfinder could have found Timley guilty beyond a reasonable doubt of the crimes of rape and aggravated criminal sodomy either by the means of force or by the means of fear. There was no error in including both alternative means in one instruction to the jury.” (Emphasis added.) Timley, 255 Kan. at 290. Subsequently, this court in Wright analyzed the Timley decision and reiterated its conclusion that force and fear are separate alternative means of committing rape, requiring sufficient evidence of both means to uphold a conviction: “The [Timley] court then held that there was sufficient evidence to convict Timley of rape and aggravated criminal sodomy either by force or by fear; thus, ‘[t]here was no error in including both alternative means in one instruction to the juiy.’ [Citation omitted.] The indispensable component in the court’s holding was ‘super-sufficiency’ of evidence, i.e., proof adequate to persuade a rational fact-finder of Timley’s guilt on rape by fear and rape by force. [Citation omitted.] If evidence had been lacking on either means alleged, Timley’s rape conviction would have been reversed.” (Emphasis added.) Wright, 290 Kan. at 203. This passage from Wright appears to reaffirm Timley’s construction of the phrase force or fear as establishing alternative means of committing rape. But later in the decision, when the Wright court applied Timley to the facts of the case, the court clearly treated the phrase force or fear as establishing a single means of committing rape. The defendant in Wright argued that the jury was instructed on alternative means when it was instructed that the defendant could be convicted of rape if the act of sexual intercourse was committed without the consent of the victim under circumstances where (a) the victim was overcome by force or fear, or (b) the victim was unconscious or physically powerless. The defendant conceded there was sufficient evidence that the victim was unconscious or physically powerless. Her only argument on appeal was that there was insufficient evidence to establish that the victim was overcome by force or fear. In addressing the defendant’s argument, this court stated: “The evidence in this case was sufficient to find Wright guilty beyond a reasonable doubt of committing rape by force or fear. J.L. testified that she woke to die realization that Wright was digitally penetrating her vagina and was paralyzed with fear. Under [State v. Bunyard, 281 Kan. 392, 133 P.3d 14 (2006)], it does not matter that the initial penetration by Wright may not have been temporally coincidental with J.L.’s fear; it is enough that the penetration and fear were eventually contemporaneous. There is no error under the Timley alternative means rule here, because the evidence of each means of committing rape—by force or fear or by unconsciousness—was sufficient to uphold a guilty verdict on the rape charge.” (Emphasis added.) Wright, 290 Kan. at 206-07. Despite recognizing Timley’s construction of the phrase “force or fear” as establishing alternative means of committing rape, the final paragraph of the alternative means analysis in Wright suggests that tbe Wright court actually considered force or fear as a single means of committing rape because the only evidence the court cited to support the defendant’s rape conviction was evidence showing that the victim was overcome by fear. The Wright court neither mentioned nor analyzed the lack of evidence suggesting that the victim was overcome by force. Admittedly, the defendant in Wright did not specifically raise the argument that force or fear are alternative means of committing rape, but if the phrase truly establishes alternative means—as the Wright court recognized was Timley’s holding—then the rape conviction in Wright should have been reversed due to insufficient evidence showing that the victim was overcome by force. However, because the rape conviction was found to be supported by sufficient evidence, Wright can be read as implicitly construing force or fear as a single means of committing rape. Regardless of whether Wright should be read as an acceptance or ultimate rejection of Timley’s construction of the phrase force or fear, one thing is clear: Timley reached the conclusion that the phrase establishes alternative means of committing rape without conducting any analysis of the statutory language. This implies that the Timley court simply assumed that the appearance of an “or” in statutory language automatically creates alternative means for committing a crime.- As noted above, the Brown decision did away with this assumption and established a framework for determining for each statute what the legislature’s use of the disjunctive “or” is intended to -accomplish—establish alternative means or options within a means. Based on Brown and its progeny, we conclude that sexual intercourse with a person who does not consent under circumstances when tire victim is overcome by force or fear is a single, unified means of committing rape. Accordingly, sufficient evidence supports a defendant’s conviction for rape under K.S.A. 21-3502(a)(1)(A) when the jury was instructed that it must find that the victim was overcome by force or fear and evidence of either force or fear was presented at trial. Language contained in Timley and Wright suggesting otherwise is specifically disapproved. As mentioned above, Nunez concedes on appeal that the State presented sufficient evidence that M.N. was overcome by force when he had nonconsensual sex with her in the bedroom. Because this evidence is sufficient to show that Nunez raped M.N. in violation of K.S.A. 21-3502(a)(l)(A), we affirm the Court of Appeals’ decision affirming Nunez’ conviction for rape. 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Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Susan L. Bowman, of Seneca, an attorney admitted to the practice of law in Kansas in 1987. On September 28, 2012, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on December 4,2012. On December 11, 2012, the respondent also filed a motion to accept answer out of time. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on January 10, 2013. Respondent’s motion to accept answer out of time was granted at the hearing. The hearing panel determined that respondent violated KRPC 1.3 (2012 Kan. Ct. R. Annot. 454) (diligence); 1.16 (2012 Kan. Ct. R. Annot. 558) (termination of representation); 3.3(a)(1) (2012 Kan. Ct. R. Annot. 582) (candor toward tribunal); 8.1(b) (2012 Kan. Ct. R. Annot. 634) (failure to respond to lawful demand for information from disciplinary authority); 8.4(c) (2012 Kan. Ct. R. Annot. 643) (engaging in conduct involving misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and Kansas Supreme Court Rule 207(b) (2012 Kan. Ct. R. Annot. 329) (failure to cooperate in disciplinary investigation). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court: “FINDINGS OF FACT “7. Tyson Langdon died intestate as a result of a car accident on October 18, 2008. He was 22 years old. He was survived by his minor daughter Noralee A. Langdon, his father Ted Langdon, and his mother Elma Ball. Tyson Langdon’s estate primarily included his vehicle and an insurance claim related to his vehicle. Additionally, Tyson Langdon had a life insurance policy for $30,000 through his employment. Noralee Langdon was the sole beneficiary of the life insurance policy, thus, the proceeds of the life insurance policy were not estate assets. “8. On November 20, 2008, Martin W. Mishler, counsel for Mr. Langdon, filed a petition for letters of administration in Nemaha County District Court. Mr. Langdon sought appointment as administrator of his son’s estate. “9. On December 17, 2008, Gordon R. Olson, counsel for Ms. Ball, filed an answer to the petition seeking transfer of the proceedings to Shawnee County and seeking Ms. Ball’s appointment as the sole administrator of the estate. That same day, Mr. Olson filed a petition for appointment of administrator and issuance of letters of administration. “10. On January 28,2009, Magistrate Judge Deiter appointed the Respondent to serve as guardian ad litem for Noralee Langdon. According to the appointment order, the Respondent was to represent the best interests of the child at all stages of the proceeding. The Respondent remains as Noralee Langdon’s guardian ad litem. Despite the Respondent’s official role as guardian ad litem, the Respondent never filed a claim with the insurance company to obtain the $30,000 in life insurance proceeds in which Noralee Langdon was the sole beneficiary. “11. On February 18, 2008, Mr. Olson filed a proof of claim for $1,600.00 for attorney fees incurred in representing Tyson Langdon on criminal matters, a revenue matter, and a paternity' action. “12. On February 18, 2009, the court appointed the Respondent to serve as administrator of the estate. On March 6, 2009, the Respondent filed an oath of administrator and agreed to ‘faithfully and impartially . . . discharge all of the duties’ as administrator. Finally, the Respondent provided a $600,000 bond for her services as administrator. On March 6, 2009, the court issued letters of administration to the Respondent. “13. On March 10,2009, Popkess Mortuary, Inc., filed a petition for allowance and classification of demand, seeking payment of the funeral expenses associated with Tyson Langdon’s funeral. “14. On March 27, 2009, Mr. Langdon filed a petition for allowance and classification of demand for expenses related to Tyson Langdon’s funeral as well as attorney fees and the grave marker. “15. The court conducted a hearing on May 13, 2009. At that time, the court authorized the Respondent to pay claims to Popkess Mortuary, Gordon Olson, and Mr. Langdon. The Respondent failed to pay the claims to Popkess Mortuary, Gordon Olson, and Mr. Langdon. “16. Also on May 13, 2009, the court authorized the administrator to sell Tyson Langdon’s vehicle. The Respondent sold Tyson Langdon’s vehicle for $2,300.00. “17. For an extended time period, the Respondent took no action in Tyson Langdon’s estate case. “18. Mr. Langdon repeatedly called the Respondent to leam tire status of the estate matter. The Respondent did not routinely take Mr. Langdon’s telephone calls nor did she return Mr. Langdon’s calls. [Footnote: For a period of time, Mr. Langdon was represented by counsel. However, on April 22, 2011, counsel for Mr. Langdon was permitted to withdraw. Following Mr. Mishler’s departure from the case, the Respondent did not adequately communicate with Mr. Langdon.] “19. On April 18, 2011, the court scheduled an administrative review hearing for May 11, 2011. The court directed the Respondent to appear at the hearing and to provide an accounting through April 30, 2011. “20. Prior to the May 11, 2011, hearing, Mr. Mishler and Mr. Olson were allowed to withdraw. "21. On May 11, 2011, the Respondent filed an interim accounting. The accounting reported a distribution from the estate to Popkess Mortuary in tire amount of $8,503.54 and to the Mishler Law Office in the amount of $1,166.15. [Footnote: The exhibits presented to the Hearing Panel do not include a copy of a claim made by Mr. Mishler nor do the exhibits include a court order authorizing the Respondent to pay Mr. Mishler’s claim.] No other distributions were made. At that time, the estate consisted of $3,430.31. “22. At the May 11, 2011, hearing, the court allowed the Respondent to withdraw as administrator after she paid Mr. Langdon’s first-class claim in the amount of $957.00 and filed a final accounting. The court appointed the Morrill & Janes Bank and Trust Company as successor administrator. “23. Between May, 2011, and December, 2011, Michael Riley, Trust Services Division President of Morrill & Janes Bank and Trust Company, repeatedly contacted the Respondent in an attempt to obtain the Respondent’s file. When Mr. Riley was able to reach the Respondent, the Respondent assured Mr. Riley that she would get him the file. The Respondent did not provide the file to Mr. Riley. “24. On December 23, 2011, Mr. Riley notified the court that die Morrill & Janes Bank and Trust Company was unable to assume the responsibilities as successor administrator because [of] the Respondent’s lack of cooperation. Mr. Riley informed the court that he would seek leave to resign the appointment unless the Respondent provided the necessary information and documents. Again, the Respondent failed to provide Mr. Riley with her file. “25. Because the Respondent continued to fail to cooperate, on February 3, 2012, Mr. Riley filed a motion asking the court to rescind the order appointing Morrill & Janes Bank and Trust Company as successor administrator. On March 9, 2012, the court granted the motion. “26. The court scheduled a case management conference for May 10, 2012. The court sent notice of the hearing to the Respondent at her office address. “27. On May 10, 2012, the Respondent failed to appear at the case management hearing. The court called the Respondent and reached her by telephone at her home. The following exchange occurred at tire outset of the hearing: ‘(Mrs. Bowman appeared by telephone.) ‘THE COURT: Susan? ‘MRS. BOWMAN: Yes. ‘THE COURT: This is Judge Weingart. ‘MRS. BOWMAN: Yes. ‘THE COURT: Were on the—We’re in court in the Estate of Tyson Lang-don, Case No. 08 PR 58, and we are on the record. ‘MRS. BOWMAN: Okay. ‘THE COURT: Are you not coming to the hearing? ‘MRS. BOWMAN: Um, I didn’t have that on my calendar. ‘THE COURT: You didn’t get a notice from our office? ‘MRS. BOWMAN: I—I did not see one. ‘THE COURT: We sent it, on April 16. ‘MRS. BOWMAN: Okay. ‘THE COURT: So you’re saying you didn’t know of this hearing today? ‘MRS. BOWMAN: No, no. ‘THE COURT: All right. Well, looking at the file, it appears that the last order of Judge Deiter was that you would be allowed to resign as administrator. ‘MRS. BOWMAN: Yes. ‘THE COURT: However, prior to being released, you were to pay the first-class claim of Ted Langdon in the amount of $957. Did you do that? ‘MRS. BOWMAN: Um—(pause). ‘THE COURT: Hello? ‘MRS. BOWMAN: I believe so. Yes. ‘THE COURT: You did do that? ‘MRS. BOWMAN: I—I—(sighs). ‘THE COURT: Okay. ‘MS. BALL: No. ‘THE COURT: It hasn’t been done yet? ‘MR. LANGDON: Absolutely not. ‘MRS. BOWMAN: No, he has not received that? ‘THE COURT: Family says no. ‘MRS. BOWMAN: Okay. ‘THE COURT: Then—That was the first part of your requirement. The second part of your requirement said you were to submit a final accounting. ‘MRS. BOWMAN: (no response). ‘THE COURT: Okay? ‘MRS. BOWMAN: Yes. ‘THE COURT: You filed an interim accounting, and you haven’t filed a final accounting. ‘MRS. BOWMAN: Right. ‘THE COURT: Okay? All right. And then, upon those conditions, then, the Court would accept your resignation. Okay? But you’re not released—You still have liability until you’re released. So you have—You have to get this done. ‘MRS. BOWMAN: Okay. ‘THE COURT: Okay? How soon can you have all this done? ‘MRS. BOWMAN: Um—(pause). Seven days? ‘THE COURT: That’ll be fine. We’ll expect the fi—the payment of Mr. Langdon and proof of payment to Mr. Langdon’s claim, and a final accounting of, of the account filed with the Court within seven days. Okay? ‘MRS. BOWMAN: Okay. ‘THE COURT: —we’ll expect that done in seven days, okay? ‘MRS. BOWMAN: Okay. ‘THE COURT: Thank you. ‘MRS. BOWMAN: I will do that. ‘THE COURT: AH right. Bye.’ “28. On May 21,2012, the Respondent filed a final accounting in Tyson Lang-don’s estate case. In the final accounting, the Respondent noted that she paid Mr. Langdon’s first-class claim for funeral expenses. “29. Eventually, the Respondent provided the court with a copy of her file relating to Tyson Langdon’s estate. The court provided the file to Mr. Riley and the Morrill & Janes Bank and Trust Company is now tire successor administrator. Mr. Riley has resolved many of the issues involved in the estate matter created by the Respondent’s lack of diligence. Additionally, Mr. Riley worked with the Kansas Insurance Department and was able to obtain the $30,000 in life insurance proceeds which will ultimately benefit Noralee Langdon. It appears that the Respondent has taken no action to establish a conservatorship or trust to hold the life insurance proceeds for the benefit of Noralee Langdon. Mr. Riley expects to close the estate in approximately 30 days. “Disciplinary Complaints “30. On January 18, 2012, Mr. Langdon filed a disciplinary complaint against the Respondent. On January 23, 2012, the Disciplinary Administrator wrote to tire Respondent, enclosed a copy of Mr. Langdon’s complaint, and directed the Respondent to provide a written response to the complaint within 15 days. The Respondent failed to provide a written response to' Mr. Langdon’s initial complaint. As a result, the Disciplinary Administrator docketed the complaint for investigation. The Disciplinary Administrator again directed the Respondent to provide a written response to Mr. Langdon’s complaint. Again, the Respondent faded to provide a written response to the complaint. “31. On Januaiy 20, 2012, Mr. Riley filed a disciplinary complaint against the Respondent. On Januaiy 26, 2012, the Disciplinary Administrator docketed Mr. Riley’s complaint against the Respondent for investigation. The Disciplinary Administrator directed the Respondent to provide a written response to Mr. Riley’s complaint. The Respondent failed to provide a written response to Mr. Riley’s complaint. “32. John D. Gatz, chairperson of the Kansas Bar Association’s Ethics and Grievance Committee appointed Darrell E. Miller, an attorney, to investigat[e] the two complaints. Mr. Miller contacted the Respondent by letter and by telephone. The Respondent failed to respond to Mr. Miller’s requests for information. “Conclusions of Law “33. The Respondent stipulated that she violated the Kansas Rules of Professional Conduct as detailed in the formal complaint. The Hearing Panel accepts the Respondent’s stipulation and concludes as a matter of law that the Respondent violated KRPC 1.3, KRPC 1.16, KRPC 3.3, KRPC 8.1, KRPC 8.4, and Kan. Sup. Ct. R. 207. The Hearing Panel does not accept the Respondent’s stipulation that she violated KRPC 1.4, as detailed below. “34. In the formal complaint, tire Disciplinary Administrator alleged drat the Respondent violated KRPC 1.3, KRPC 1.4, and KRPC 1.16. All three of these rules, require an attorney-client relationship. The Respondent was not acting as an attorney for Noralee Langdon nor was she acting as attorney for the estate. The Respondent was appointed to serve as a guardian ad litem, and as an administrator for the estate. “35. However, because die Respondent stipulated to all the rules alleged in the formal complaint, the question of whether diese rules apply in tiiis situation was not discussed in detail at the hearing on the formal complaint. For guidance on tiiis subject, the Hearing Panel has reviewed In re Williamson, 260 Kan. 569, 918 P.2d 1302 (1996). In that case, the Supreme Court disbarred Walter C. Williamson for misconduct which occurred in connection with his appointment as executor of his grandmother’s estate. The Respondent’s misconduct included a lack of diligence, in violation of KRPC 1.3. While the Supreme Court did not specifically discuss whether an attorney serving as an executor or an administrator of an estate has an attorney-client relationship as required by KRPC 1.3, the Supreme Court concluded that Mr. Williamson violated KRPC 1.3. Accordingly, based upon In re Williamson, the Hearing Panel concludes that it is proper to consider KRPC 1.3. KRPC 1.4 and KRPC 1.16, however, require a closer look. “KRPC 1.3 “36. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The court appointed the Respondent to serve as a guardian ad litem for Noralee Langdon and as administrator of Tyson Lang-don’s estate. “37. The Respondent failed to execute her duties as administrator diligently. The Respondent failed to timely pay the debts of the estate, the Respondent failed to timely file accountings with the court, and the Respondent faded to close the estate. “38. The order appointing the Respondent as guardian ad litem required the Respondent to represent thfe best interests of the child. The Respondent failed and continues to fail to execute her duties as guardian ad litem diligently. To date, the Respondent has taken no action to ensure that Noralee Langdon receives the proceeds from the life insurance policy purchased by her father through his employment. From the record before the Hearing Panel, it appears that the Respondent has taken no action as guardian ad litem. “39. Because the Respondent failed to act with reasonable diligence and promptness both as administrator of Tyson Langdon’s estate and as guardian ad litem for Noralee Langdon, and based upon her stipulation, the Hearing Panel concludes that the Respondent violated KRPC 1.3. “KRPC 1.4 “40. KRPC 1.4(a) provides: ‘(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. ‘(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to malee informed decisions regarding the representation.’ “41. In this case, the Respondent had two separate roles. First, the court appointed the Respondent to serve as guardian ad litem for Noralee Langdon. Whether the Respondent provided adequate communication to Noralee Langdon was not developed at the hearing. Accordingly, the Hearing Panel cannot conclude that the Respondent violated KRPC 1.4 with regard to her role as guardian ad litem. “42. Second, the court appointed the Respondent to serve as the administrator of Tyson Langdon’s estate. Clearly, the Respondent failed to adequately communicate with Mr. Langdon and Mr. Riley. However, neither Mr. Langdon nor Mr. Riley is the estate. The estate has no person with which to communicate. The Hearing Panel believes that technically it cannot conclude that the Respondent violated KRPC 1.4 for her failure to properly communicate with Mr. Langdon [or] Mr. Riley. [Footnote: It is important to note, however, regardless of whether the Respondent violated KRPC 1.4 in this regard, the Respondent should have provided adequate communication to Mr. Langdon and Mr. Riley. Further, the Respondent’s failure to communicate with Mr. Langdon and Mr. Riley amounts to a violation of KRPC 8.4(d) as detailed below.] “KRPC 1.16 “43. KRPC 1.16 requires lawyers to take certain steps to protect clients after the representation has been terminated. Specifically, KRPC 1.16(d) provides the requirement in this regard: ‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’ “44. Again, the Respondent was not acting in an attorney-client relationship in this matter. In the opinion of the Hearing Panel, however, it appears that a discussion of KRPC 1.16 is more hice the discussion of KRPC 1.3 and less like the discussion of KRPC 1.4. Consideration of KRPC 1.16 is appropriate in this case because the Respondent owes a duty to the estate to properly terminate her relationship with the estate. Accordingly, the Hearing Panel concludes that it is proper to consider KRPC 1.16. [Footnote: The Respondent’s role as guardian ad litem is not relevant to the discussion of KRPC 1.16, as the Respondent continues in that role. The Hearing Panel is concerned that the Respondent continues in that role as it appears that the Respondent has taken no action to protect the financial interests of Noralee Langdon.] “45. The Respondent executed an oath of administrator—swearing to faithfully discharge her duties as administrator. The Respondent failed to faithfully discharge her duties as administrator. “46. On May 11, 2011, the court agreed to allow the Respondent to withdraw as administrator of Tyson Langdon’s estate, if (and only if) she paid Mr. Langdon’s first-class claim and provided a final accounting. The Respondent failed to do so. A year later, the court reminded the Respondent of her obligation to pay Mr. Langdon’s claim and file a final accounting. The Respondent finally paid Mr. Langdon’s first-class claim and filed a final accounting. By failing to timely taire the steps as required by the court to terminate her role as administrator of the estate, the Respondent violated KRPC 1.16. “47. Further, the Respondent failed to provide Mr. Riley with a copy of tire estate file. The court agreed to replace the Respondent as administrator of the estate with the Morrill & Janes Bank and Trust Company. However, for Mr. Riley of the Morrill & Janes Bank and Trust Company to be able to step into that role, he needed to have a copy of the estate file. The Respondent’s failure to provide Mr. Riley -with a copy of Tyson Langdon’s estate file amounts to an additional violation of KRPC 1.16. “KRPC 3.3 “48. KRPC 3.3(a)(1) provides that ‘[a] lawyer shall not knowingly make a false statement of material fact or law to a tribunal.’ The Respondent made a false statement of material fact to the Court when she falsely stated to the court that she had made a claim to the insurance company for the benefit of Noralee Lang-don. Because the Respondent provided false information to the Court, the Hearing Panel concludes that the Respondent violated KRPC 3.3(a)(1). “KRPC 8.4(c) “49. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct that involved dishonesty when she informed the court that she had made a claim with the insurance company for the benefit of Noralee Langdon when she had not done so. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c). “KRPC 8.4(d) “50. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). The Respondent engaged in conduct that was prejudicial to the administration of justice when she failed to properly communicate with Mr. Langdon and Mr. Riley and when she failed to comply with court orders—the order to provide a copy of the estate file to Morrill & Janes Bank and Trust Company, the order to appear in court in May, 2012, and the order to pay Mr. Langdon’s first-class claim and file a final accounting. Thus, the Hearing Panel concludes that the Respondent repeatedly violated KRPC 8.4(d). “KRPC 8.1 and Kan. Sup. Ct. R. 207(b) “51. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirements in this regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a] . .. disciplinary authority,...’ KRPC 8.1(b). ‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, tire Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’ Kan. Sup. Ct. R. 207(b). The Disciplinary Administrator and Mr. Miller repeatedly informed the Respondent that a written response to the initial complaints were required. The Respondent never provided written responses to the initial complaints filed in this case. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) by failing to provide written responses to the two complaints filed in this case. “American Bar Association “Standards for Imposing Lamjer Sanctions “52. In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the po tential or actual injuiy caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “53. Duty Violated. The Respondent violated her duty to the estate and to her ward to provide diligent representation. The Respondent also violated her duty to the estate [to] properly terminate her relationship with the estate. Additionally, the Respondent violated her duty to the legal system, the legal profession, and the public to maintain her personal integrity. Finally, the Respondent violated her duty to the legal profession to cooperate in disciplinary investigations. “54. Mental State. The Respondent knowingly violated her duties. “55. Injury. The Respondent’s misconduct caused extreme delay in handling a simple estate. Additionally, the Respondent’s misconduct nearly caused Noralee Langdon to lose her claim to $30,000 in life insurance proceeds. Accordingly, the Hearing Panel concludes that the Respondent caused actual injury to tire legal profession and tire legal system and serious potential injury to Noralee Langdon. “Aggravating and Mitigating Factors “56. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present: “57. Dishonest or Selfish Motive. The Respondent’s motive in this case is difficult to ascertain. Certainly, the Respondent was not honest with the court in her discussion regarding tire payment of Mr. Langdon’s first-class claim. Because the Respondent engaged [in dishonest conduct] the Hearing Panel concludes that tire Respondent’s misconduct was motivated by dishonesty. “58. A Pattern of Misconduct. For several years, the Respondent failed to take action to get tire estate closed. Accordingly, the Hearing Panel concludes that the Respondent engaged in a pattern of misconduct. “59. Multiple Offenses. The Respondent committed multiple rule violations. The Respondent violated KRPC 1.3, KRPC 1.16, KRPC 3.3, KRPC 8.1, KRPC 8.4, and Kan. Sup. Ct. R. 207. Accordingly, the Hearing Panel concludes that the Respondent committed multiple offenses. “60. Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply loith Rules or Orders of the Disciplinary Process. The Respondent failed to provide written responses to the complaints in this case. The Respondent was repeatedly instructed to provide written responses. The Respondent’s repeated failure to provide written responses to the complaint amounts to bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules and orders of the disciplinary process. “61. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in the State of Kansas in 1987. At the time of the misconduct, the Respondent has been practicing law for more than 20 years. “62. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present: “63. Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined. “64. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The Respondent suffers from depression. The Respondent stated that her depression contributed to the misconduct. “65. The Present Attitude of the Attorney as Shown by Her Cooperation During the Hearing and Her Full and Free Acknoioledgment of the Transgressions. The Respondent fully cooperated during the hearing and admitted the facts and the rule violations as alleged in the formal complaint. “66. In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered tire following Standards: ‘4.42 Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injuiy to a client. ‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injuiy or potential injuiy to a client, the public, or the legal system.’ “Recommendation “67. The Deputy Disciplinary Administrator recommended that the Respondent be suspended from the practice of law for a period of twelve months. The Deputy Disciplinary Administrator further recommended that the Respondent be required to appear at a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219, following the period of suspension. “68. Counsel for the Respondent recommended that the Respondent be censured by the Kansas Supreme Court and that the censure be published in the Kansas Reports. “69. The Respondent’s misconduct can be classified into three separate types of misconduct. First, the Respondent failed to diligently do what was necessary to complete her assignments as administrator of Tyson Langdon’s estate and guardian ad litem for Noralee Langdon. Second, the Respondent was reckless in her statement to the court that she had paid Mr. Langdon. She either knew she had not paid Mr. Langdon and said that she did or she did not know whether she paid Mr. Langdon and said that she did. Either way, the Respondent did not properly provide truthful, accurate, and relevant information to the court. And third, the Respondent failed to comply with court orders. She had been ordered by the court to provide a copy of her file to Mr. Riley. She failed to do so. Additionally, the court ordered her to appear at a hearing in May, 2012. She failed to do so. Finally, the court ordered her to pay Mr. Langdon’s first-class claim and file a final accounting. She failed to do so for more than a year and after another hearing was convened because she failed to do so. “70. To date, the Respondent has not taken sufficient steps to ensure that her problems with diligence are a part of her past. Accordingly, based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that tire Respondent be suspended for a period of 12 months. “71. The Hearing Panel further recommends that upon receipt of this report, the Respondent immediately develop a workable, substantial, and detailed plan of probation and provide a copy of the plan of probation to the Disciplinary Administrator. The plan of probation must be at least two years in length and must contain adequate safeguards that will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court. If tire Disciplinary Administrator believes that the proposed plan of probation is insufficient, the Respondent shall resolve any deficiencies noted by the Disciplinary Administrator. The Respondent’s plan of probation must include practice supervision and appropriate mental health treatment and medication review. “72. The Hearing Panel further recommends that the Respondent immediately put the plan of probation into effect by complying with each of the terms and conditions of the probation plan. The Hearing Panel also recommends that prior to the oral argument before tire Supreme Court, the Respondent provide an affidavit to the Disciplinary Administrator and the Clerk of the Appellate Courts that details how the Respondent is in compliance with the terms and conditions of the proposed probation plan. “73. If the Respondent complies with paragraphs 70 and 71 above to the satisfaction of the Disciplinary Administrator, the Hearing Panel recommends that after six months’ suspension, the Supreme Court suspend tire imposition of tire remaining six months’ suspension and place the Respondent on probation without the need of a reinstatement hearing pursuant to Kan. Sup. Ct. R. 219. “74. If the Respondent fails to comply with paragraphs 70 and 71 above, the Hearing Panel recommends that the full 12-month suspension be imposed and that tire Respondent be required to appear at a reinstatement hearing pursuant to Kan. Sup. Ct. R. 219. “75. Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.” Discussion In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, the discipline to be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2012 Kan. Ct. R. Annot. 350). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). The respondent was given adequate notice of the formal complaint, to which she filed an answer; she filed no exceptions to the hearing panel’s final hearing report. With no exceptions before us, the panel’s findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2012 Kan. Ct. R. Annot. 368). Furthermore, the evidence before the hearing panel establishes the charged misconduct in violation of KRPC 1.3 (2012 Kan. Ct. R. Annot. 454) (diligence); 1.16 (2012 Kan. Ct. R. Annot. 558) (termination of representation); 3.3(a)(1) (2012 Kan. Ct. R. Annot. 582) (candor toward tribunal); 8.1(b) (2012 Kan. Ct. R. Annot. 634) (failure to respond to lawful demand for information from disciplinary authority); 8.4(c) (2012 Kan. Ct. R. Annot. 643) (engaging in conduct involving misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and Kansas Supreme Court Rule 207(b) (2012 Kan. Ct. R. Annot. 329) (failure to cooperate in disciplinary investigation) by clear and convincing evidence and supports the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions. The only remaining issue before us is the appropriate discipline for respondent’s violations. At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator recommended that the respondent be suspended for a period of 12 months and be required to appear at a reinstatement hearing pursuant to Supreme Court Rule 219 (2012 Kan. Ct. R. Annot. 398). The hearing panel recommended that respondent be suspended for a period of 12 months; that she immediately develop and implement a workable, substantial, and detailed plan of probation of at least 2 years in length and provide a copy of the plan of probation to the Disciplinaiy Administrator; and that the plan of probation include practice supervision and appropriate mental health treatment and medication review. Further, the hearing panel recommended that prior to oral argument to this court, respondent provide an affidavit to the Disciplinary Administrator and Clerk of the Appellate Courts detailing how respondent was in compliance with the terms and conditions of the proposed probation plan. A majority of tire court concludes that respondent should be suspended from the practice of law for 12 months effective as of the date of this opinion. Respondent may be reinstated to the practice of law after 6 months provided a reinstatement hearing is conducted under Rule 219, wherein both the hearing panel and the office of tire Disciplinary Administrator approve her proposed probation plan. Further, the respondent shall provide to the hearing panel and the office of the Disciplinary Administrator a written report from a licensed psychiatric, psychological, or social work professional approved by the Kansas Lawyers Assistance Program that includes an opinion that there are no current impediments to respondent’s ability to practice law. The reinstatement panel must satisfy itself from the information in that report and any other evidence submitted to it that respondent has successfully addressed the problems that led to her misconduct and suspension. If reinstatement is recommended by a panel after a hearing conducted under Rule 219, the remainder of respondent’s 12-month suspension from the practice of law shall be suspended, and she shall be allowed to practice while on probation for an additional 24 months. Provided her probation is completed successfully, she will be released from the suspended portion of her suspension. A minority of the Court would impose the discipline level recommended by the Office of the Disciplinary Administrator: that the respondent be suspended for a period of 12 months and be required to appear at a reinstatement hearing pursuant to Supreme Court Rule 219. Conclusion and Discipline It Is Therefore Ordered that Susan L. Bowman be suspended from the practice of law in the state of Kansas, in accord- anee with Supreme Court Rule 203(a)(2) (2012 Kan. Ct. R. Annot. 294), for 12 months effective as of the date of this opinion. Respondent may be reinstated to the practice of law after 6 months provided: (1) a reinstatement hearing is conducted under Rule 219, wherein both the reinstatement panel and the office of Disciplinary Administrator approve her proposed probation plan; (2) foe respondent provides to the panel and foe office of the Disciplinary Administrator a written report from a licensed psychiatric, psychological, or social work professional approved by the Kansas Lawyers Assistance Program which includes an opinion that there are no current impediments to respondent’s ability to practice law; and (3) foe panel satisfies itself from the information in that report and any other evidence submitted to it that respondent has addressed the problems that led to her misconduct and suspension. If reinstatement is recommended by a panel after a hearing conducted under Rule 219, the remainder of respondent’s 12-month suspension from the practice of law shall be suspended, and she shall be allowed to practice while on probation for an additional 24 months. Assuming successful completion of the probation, respondent will be released from the suspended portion of her suspension. It Is Further Ordered that foe respondent shall comply with Supreme Court Rule 218 (2012 Kan. Ct. R. Annot. 397) and Rule 219. It Is Further Ordered that foe costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.	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Denied Unpublished	[ -99, 105, -55, 63, -88, -95, 58, 30, -62, -113, 103, 119, -49, -30, -116, 89, -83, 103, -91, 91, 93, 23, 127, -27, 98, 91, -94, -11, -15, 111, -2, -112, 76, 24, -37, 93, -58, -120, -115, 88, -122, 7, -104, -116, -111, 65, 36, 35, 104, 15, 89, -44, -15, 46, -98, 67, -56, 102, -57, -83, -63, -35, -111, 31, -65, 20, -62, 85, -100, 11, -62, 102, 16, 48, 53, -20, 114, -90, -41, 85, 7, -7, -80, 33, 10, 32, -68, -91, 32, 44, 15, 94, 13, -92, -5, 9, 75, 57, -46, -35, 16, -108, 39, 62, 98, -60, 15, -88, 46, -1, -26, -93, 31, 40, 12, 9, -5, -42, 16, 49, -49, 53, -40, -78, 53, -118, -42, 53 ]
Denied Unpublished	[ -99, 105, -55, 63, -88, -95, 58, 30, -62, -113, 103, 119, -49, -30, -116, 89, -83, 103, -91, 91, 93, 23, 127, -27, 98, 91, -94, -11, -15, 111, -2, -112, 76, 24, -37, 93, -58, -120, -115, 88, -122, 7, -104, -116, -111, 65, 36, 35, 104, 15, 89, -44, -15, 46, -98, 67, -56, 102, -57, -83, -63, -35, -111, 31, -65, 20, -62, 85, -100, 11, -62, 102, 16, 48, 53, -20, 114, -90, -41, 85, 7, -7, -80, 33, 10, 32, -68, -91, 32, 44, 15, 94, 13, -92, -5, 9, 75, 57, -46, -35, 16, -108, 39, 62, 98, -60, 15, -88, 46, -1, -26, -93, 31, 40, 12, 9, -5, -42, 16, 49, -49, 53, -40, -78, 53, -118, -42, 53 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied Unpublished	[ -99, 105, -55, 63, -88, -95, 58, 30, -62, -113, 103, 119, -49, -30, -116, 89, -83, 103, -91, 91, 93, 23, 127, -27, 98, 91, -94, -11, -15, 111, -2, -112, 76, 24, -37, 93, -58, -120, -115, 88, -122, 7, -104, -116, -111, 65, 36, 35, 104, 15, 89, -44, -15, 46, -98, 67, -56, 102, -57, -83, -63, -35, -111, 31, -65, 20, -62, 85, -100, 11, -62, 102, 16, 48, 53, -20, 114, -90, -41, 85, 7, -7, -80, 33, 10, 32, -68, -91, 32, 44, 15, 94, 13, -92, -5, 9, 75, 57, -46, -35, 16, -108, 39, 62, 98, -60, 15, -88, 46, -1, -26, -93, 31, 40, 12, 9, -5, -42, 16, 49, -49, 53, -40, -78, 53, -118, -42, 53 ]
Denied. ... Unpublished	[ 29, 105, 77, 62, -88, -79, 49, 62, 82, -113, 103, 119, -49, -22, -116, 89, -83, 111, -92, 91, 79, 22, 127, -27, 98, -37, -78, 117, 113, 111, -6, 48, 76, 56, -102, 69, -62, -56, -115, 88, -122, 7, -103, -116, -112, -63, 36, 35, -56, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -62, -35, -111, 23, -67, 84, -64, 85, -48, 73, -64, 110, 16, -80, 53, -24, 114, 38, -121, 85, 15, -7, -108, 32, 10, 32, -68, -83, 40, -68, 78, 94, 45, -92, -21, 40, 75, 121, -101, -3, 0, -43, 39, 60, 106, -124, 15, -24, 46, -17, 116, -77, 31, 40, 12, 9, -13, -34, 16, 55, -57, 119, -52, -78, 53, -102, -122, 48 ]
Denied. ... 49 Kan. App. 2d 143	[ 21, -21, -19, 60, -52, -96, -127, 30, 1, -69, 117, 115, -19, -34, 4, 123, -34, 111, -75, 123, -49, -78, 127, 72, 82, -37, -37, -35, -7, 111, -12, 52, 76, -16, -86, 21, -58, -64, -115, 88, -116, 5, -103, 77, 17, -110, 52, -31, 126, 7, -75, -124, 115, 44, 30, -31, -120, 100, 75, -67, -55, -7, -71, -105, -68, 84, -126, 85, -108, -59, 80, 126, -112, 16, 1, -20, 114, 38, -122, 117, 11, -103, -123, -28, 102, 34, 40, -17, 104, -65, 30, 30, 13, -90, -45, 8, 97, 9, -74, -67, 116, 54, 11, -8, 107, -124, 15, 124, -118, -33, -16, -79, -117, 57, 12, -103, -1, -124, -112, 49, -33, -16, 78, -42, 49, 91, 6, -76 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied Unpublished	[ -99, 105, -55, 63, -88, -95, 58, 30, -62, -113, 103, 119, -49, -30, -116, 89, -83, 103, -91, 91, 93, 23, 127, -27, 98, 91, -94, -11, -15, 111, -2, -112, 76, 24, -37, 93, -58, -120, -115, 88, -122, 7, -104, -116, -111, 65, 36, 35, 104, 15, 89, -44, -15, 46, -98, 67, -56, 102, -57, -83, -63, -35, -111, 31, -65, 20, -62, 85, -100, 11, -62, 102, 16, 48, 53, -20, 114, -90, -41, 85, 7, -7, -80, 33, 10, 32, -68, -91, 32, 44, 15, 94, 13, -92, -5, 9, 75, 57, -46, -35, 16, -108, 39, 62, 98, -60, 15, -88, 46, -1, -26, -93, 31, 40, 12, 9, -5, -42, 16, 49, -49, 53, -40, -78, 53, -118, -42, 53 ]
Denied Unpublished	[ -99, 105, -55, 63, -88, -95, 58, 30, -62, -113, 103, 119, -49, -30, -116, 89, -83, 103, -91, 91, 93, 23, 127, -27, 98, 91, -94, -11, -15, 111, -2, -112, 76, 24, -37, 93, -58, -120, -115, 88, -122, 7, -104, -116, -111, 65, 36, 35, 104, 15, 89, -44, -15, 46, -98, 67, -56, 102, -57, -83, -63, -35, -111, 31, -65, 20, -62, 85, -100, 11, -62, 102, 16, 48, 53, -20, 114, -90, -41, 85, 7, -7, -80, 33, 10, 32, -68, -91, 32, 44, 15, 94, 13, -92, -5, 9, 75, 57, -46, -35, 16, -108, 39, 62, 98, -60, 15, -88, 46, -1, -26, -93, 31, 40, 12, 9, -5, -42, 16, 49, -49, 53, -40, -78, 53, -118, -42, 53 ]
Denied 48 Kan. App. 2d 164	[ -107, -21, -27, 60, -116, -96, 1, 14, 1, -69, 119, 83, -17, -38, 20, 121, -50, 111, -16, 120, -35, -74, 127, 104, 114, 91, -37, -35, -7, 111, -11, -112, 76, -16, -22, -43, -60, -64, -115, 88, -116, 4, -103, 77, 17, -109, 60, -29, 122, 3, 49, -124, -13, 44, 26, 97, -119, 108, -53, -67, -63, -39, -79, -107, -4, 20, 96, 84, -112, -63, 80, 126, -108, 16, 33, -56, 115, 38, -122, 117, 75, -103, -91, -19, 98, 35, 40, -19, -92, -82, 22, 27, 13, -90, -46, 8, 99, 9, -106, -3, 120, -106, 43, -6, 107, 4, 47, 124, -118, -17, -16, -77, -33, 57, -124, 1, -1, -108, -112, 49, -35, -16, 94, -42, -79, 58, 30, -72 ]
Granted. ... Unpublished	[ -107, 57, -99, 63, -88, 49, 59, -66, -58, -113, 102, 127, -113, 106, 12, -39, -89, 103, -108, 83, 76, 7, 55, -63, -30, 83, -77, 81, 113, 101, -66, 56, 70, -128, -102, 61, -26, -56, -51, -37, -122, -105, -120, -115, -48, 64, 36, 35, -55, 15, 81, -44, 96, -86, 28, 81, -116, 30, -57, -113, 81, -24, -99, 83, -65, -108, -126, 85, 20, -21, -64, -20, 24, 56, 21, -88, 114, -26, -125, 87, 15, -23, -92, 4, 10, 112, -68, -7, 36, -4, 7, -50, 45, -121, 43, 73, 107, 121, 122, 125, 8, 20, 43, 60, 99, -127, 45, -86, 41, -97, 102, -93, 31, 44, 12, 11, -5, -1, 18, 55, -57, 119, -52, -14, 37, -126, -62, 55 ]
Denied Unpublished	[ -99, 105, -55, 63, -88, -95, 58, 30, -62, -113, 103, 119, -49, -30, -116, 89, -83, 103, -91, 91, 93, 23, 127, -27, 98, 91, -94, -11, -15, 111, -2, -112, 76, 24, -37, 93, -58, -120, -115, 88, -122, 7, -104, -116, -111, 65, 36, 35, 104, 15, 89, -44, -15, 46, -98, 67, -56, 102, -57, -83, -63, -35, -111, 31, -65, 20, -62, 85, -100, 11, -62, 102, 16, 48, 53, -20, 114, -90, -41, 85, 7, -7, -80, 33, 10, 32, -68, -91, 32, 44, 15, 94, 13, -92, -5, 9, 75, 57, -46, -35, 16, -108, 39, 62, 98, -60, 15, -88, 46, -1, -26, -93, 31, 40, 12, 9, -5, -42, 16, 49, -49, 53, -40, -78, 53, -118, -42, 53 ]
Denied 48 Kan. App. 2d 567	[ -107, -21, -19, 62, -116, -96, -111, 15, 1, -69, 119, 83, -17, -38, 4, 121, -50, 45, -16, 120, -35, -74, 127, 104, 114, 91, -37, -35, -7, 107, -11, -80, 76, -16, -22, -107, 68, -64, -115, 88, -116, 4, -103, 76, 17, -109, 60, -29, 122, 7, 17, -124, -13, 44, 26, 97, -127, 108, -53, -67, -63, -7, -79, -105, -36, 20, -32, 84, -110, -63, 80, 110, -112, 16, 33, -24, 115, 38, -122, 117, 74, -103, -91, -19, 98, 35, 40, -19, -32, -82, 54, 30, -115, -90, -45, 8, 98, 9, -106, -99, 113, 22, 11, -6, 107, 4, 7, 124, -118, -17, -8, -77, -33, 57, 12, 17, -17, -108, -112, 49, -33, -16, 94, -41, -79, 26, 94, -80 ]
Denied Unpublished	[ -99, 105, -55, 63, -88, -95, 58, 30, -62, -113, 103, 119, -49, -30, -116, 89, -83, 103, -91, 91, 93, 23, 127, -27, 98, 91, -94, -11, -15, 111, -2, -112, 76, 24, -37, 93, -58, -120, -115, 88, -122, 7, -104, -116, -111, 65, 36, 35, 104, 15, 89, -44, -15, 46, -98, 67, -56, 102, -57, -83, -63, -35, -111, 31, -65, 20, -62, 85, -100, 11, -62, 102, 16, 48, 53, -20, 114, -90, -41, 85, 7, -7, -80, 33, 10, 32, -68, -91, 32, 44, 15, 94, 13, -92, -5, 9, 75, 57, -46, -35, 16, -108, 39, 62, 98, -60, 15, -88, 46, -1, -26, -93, 31, 40, 12, 9, -5, -42, 16, 49, -49, 53, -40, -78, 53, -118, -42, 53 ]
Denied Unpublished	[ -99, 105, -55, 63, -88, -95, 58, 30, -62, -113, 103, 119, -49, -30, -116, 89, -83, 103, -91, 91, 93, 23, 127, -27, 98, 91, -94, -11, -15, 111, -2, -112, 76, 24, -37, 93, -58, -120, -115, 88, -122, 7, -104, -116, -111, 65, 36, 35, 104, 15, 89, -44, -15, 46, -98, 67, -56, 102, -57, -83, -63, -35, -111, 31, -65, 20, -62, 85, -100, 11, -62, 102, 16, 48, 53, -20, 114, -90, -41, 85, 7, -7, -80, 33, 10, 32, -68, -91, 32, 44, 15, 94, 13, -92, -5, 9, 75, 57, -46, -35, 16, -108, 39, 62, 98, -60, 15, -88, 46, -1, -26, -93, 31, 40, 12, 9, -5, -42, 16, 49, -49, 53, -40, -78, 53, -118, -42, 53 ]
Denied 49 Kan. App. 2d 102	[ 23, -23, -31, 124, -116, -96, 1, 30, 17, -65, 117, 83, -17, -34, 4, 121, -34, 111, -16, 122, -51, -78, 127, 72, 82, 91, -37, -43, -8, 111, -11, -108, 76, -16, -86, -43, -58, -64, -115, 88, -116, 5, -103, 77, 17, -125, 60, -31, 122, 7, 49, -116, -13, 44, 26, -31, -119, 108, -53, -67, -55, -39, -79, -107, -68, 20, -32, 84, -112, -59, 80, 110, -112, -111, 33, -20, 115, 38, -122, 117, 75, -103, -123, -20, 98, 35, 44, -19, 56, -82, 30, 24, 13, -90, -45, 8, 99, 9, -106, -99, 113, 22, 11, -6, 99, -124, 15, 108, -118, -18, -16, -77, -97, 57, 4, 17, -1, -106, -112, 49, -33, -12, 94, -57, 49, 90, 78, -76 ]
Denied Unpublished	[ -99, 105, -55, 63, -88, -95, 58, 30, -62, -113, 103, 119, -49, -30, -116, 89, -83, 103, -91, 91, 93, 23, 127, -27, 98, 91, -94, -11, -15, 111, -2, -112, 76, 24, -37, 93, -58, -120, -115, 88, -122, 7, -104, -116, -111, 65, 36, 35, 104, 15, 89, -44, -15, 46, -98, 67, -56, 102, -57, -83, -63, -35, -111, 31, -65, 20, -62, 85, -100, 11, -62, 102, 16, 48, 53, -20, 114, -90, -41, 85, 7, -7, -80, 33, 10, 32, -68, -91, 32, 44, 15, 94, 13, -92, -5, 9, 75, 57, -46, -35, 16, -108, 39, 62, 98, -60, 15, -88, 46, -1, -26, -93, 31, 40, 12, 9, -5, -42, 16, 49, -49, 53, -40, -78, 53, -118, -42, 53 ]
The opinion of the court was delivered by Johnson, J.: Melanie A. Fisher attempted to commence a medical malpractice action against Alex F. DeCarvalho, M.D., by mailing the summons and petition via unrestricted certified mail, sent to the doctor s business address. The doctor actually received die petition and filed an answer diat asserted several affirmative defenses, including insufficiency of process, lack of personal jurisdic tion, and a statute of limitations bar. After participating in the discovery process for a time, the doctor filed a motion to dismiss, alleging an absence of personal jurisdiction because Fisher’s attempted certified mailing did not comply with the requirements of K.S.A. 60-304(a) to effect a valid service of process. The district court dismissed the lawsuit with prejudice, finding that Fisher had failed to substantially comply with the statutoiy requirements for service of process by return receipt mail delivery, that the defendant’s actual notice of tire lawsuit did not confer personal jurisdiction on the district court absent a proper service of process, and that Fisher was not entitled to the additional time to effect service after the adjudication of invalidity, pursuant to K.S.A. 60-203(b), because her initial attempt at service did not appear to be valid, as required by Grimmett v. Burke, 21 Kan. App. 2d 638, Syl. ¶ 4, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996). The Court of Appeals affirmed the district court’s dismissal in Fisher v. DeCarvalho, 45 Kan. App. 2d 1133, 260 P.3d 1218 (2011), and we granted review. We agree with the results reached below on the issues of substantial compliance and actual notice, but we find that Fisher should have been afforded the opportunity, within the time limits set forth in K.S.A. 60-203(b), to attempt to effect a valid service of process after the district court’s adjudication of invalidity. We reverse and remand with directions for the district court to afford the plaintiff that opportunity. Factual and Procedural Overview On October 1,2007, Dr. DeCarvalho performed an arthroscopic procedure on Fisher’s right knee. Unsatisfied with the result, Fisher filed a medical malpractice lawsuit against the doctor 2 years later, on October 1, 2009. Fisher elected to obtain service of process on the defendant by mail, rather than personal service, ostensibly to avoid disrupting the doctor’s medical practice. Accordingly, on November 30, 2009, after requesting and receiving a summons from tire district court clerk’s office, Fisher’s counsel mailed the summons and petition to the doctor’s medical office by unres tricted certified mail, i.e., the mail did not direct that delivery was to be made only to the addressee, Dr. DeCarvalho. On December 14, 2009, Fisher filed a return of service with the district court that included a return receipt on the certified mail reflecting that an individual named Phyllis Bieker had signed for the envelope on December 2, 2009. The return of service did not indicate Bieker s relationship to the defendant or explain why she was authorized to accept service of process on his behalf. Nevertheless, the defendant does not deny that he had actual notice of die lawsuit, and he filed an answer to the petition on January 4, 2010, after requesting and receiving a 10-day clerk’s extension. In his answer, the defendant asserted several affirmative defenses, including insufficiency of process, lack of personal jurisdiction, and a violation of the statute of limitations. On March 1, 2010, the defendant served Fisher with interrogatories and a request for production of documents. Two days later, the defendant responded to plaintiffs discovery requests. The following month, on April 26, 2010, the defendant filed a motion to dismiss for lack of personal jurisdiction, arguing that Fisher had failed to effect proper service of process prior to the expiration of the statute of limitations. Specifically, the defendant claimed that the initial attempt at service by certified, unrestricted mail at his place of business was invalid because it did not comply with the requirements for service by return receipt delivery to an individual set forth in K.S.A. 60-304(a). In response, Fisher argued that the provisions of K.S.A. 60-204 validated the service of process because she had substantially complied with the requirements of K.S.A. 60-304(a). Additionally, she asserted that the defendant had actual knowledge of the lawsuit, as evidenced by his timely answer to the petition and his active participation in the discovery process, which established that the purpose of the service of process had been fulfilled. In the alternative, Fisher contended that even if the district court adjudicated her initial service of process to be invalid, she was entitled to an additional 90 (or 120) days after the invalidity adjudication to effect valid service, as provided in K.S.A. 60-203(b). On May 26, 2010, the district court found in favor of the defendant and dismissed the lawsuit with-prejudice. En route to that disposition, the district court rejected Fisher s' assertion that she had substantially complied with the statutory requirements for mail service and, therefore, the court held that she was not entitled to the validation benefit of K.S.A. 60-204. Further, the district court opined that the defendant’s actual notice of the lawsuit was not enough to confer personal jurisdiction upon the court in the absence of a proper statutory service of process. Finally, the district court found that Fisher was not entitled to the additional time to effect service after the court’s invalidity adjudication, as specifically provided in K.S.A. 60-203(b), because the initial service of process in this case did not meet Grimmstt’s requirement of facial validity. See Grimmett, 21 Kan. App. 2d at 647-48. On appeal to the Court of Appeals, Fisher focused on three arguments. First, she continued to argue that her service upon the defendant substantially complied with the statutoiy method for effecting service of process by return receipt delivery, so that the initial service was statutorily defined as valid under K.S.A. 60-204. Second, for the first time on appeal, Fisher argued that pursuant to K.S.A. 60-303(e), the defendant voluntarily acknowledged service by appearing in the action through his pleadings and discovery. For her third argument, Fisher asserted that even if the initial service was invalid, the plain language of K.S.A. 60-203(b) provided her an additional time-—at least 90 days after the court determination of invalidity—to cure the defect(s) through another, valid service of process. The Court of Appeals affirmed the district court’s dismissal with prejudice. First, comparing Fisher’s attempted mail service against the specific requirements clearly set forth in K.S.A. 60-304(a), the panel opined that plaintiff s efforts fell well short of this court’s definition of “substantial compliance” in Myers v. Board of Jackson County Comm'rs, 280 Kan. 869, 874, 127 P.3d 319 (2006), so that the attempted service of process could not be deemed valid under K.S.A. .60-204. Fisher, 45 Kan. App. 2d at 1147. Second, the Court of Appeals exercised review over Fisher’s argument regarding a voluntary entry of appearance under K.S.A. 60-303(e), notwithstanding her raising that issue for the first time on appeal. But the panel relied on Haley v. Hershberger, 207 Kan. 459, 485 P.2d 1321 (1971), superseded by statute on other grounds as stated in Myers, 280 Kan. at 875, for the proposition that the filing of a motion for extension of time to answer a petition does not waive an insufficiency of service of process defense. Therefore, because the defendant’s other participation in the lawsuit occurred after the action was barred by the statute of limitations, those appearances did not cure the faulty service of process. Fisher, 45 Kan. App. 2d at 1148-49. Finally, the Court of Appeals rejected Fisher’s argument that she was entitled to an additional 90 days to effect valid service of process under K.S.A. 60-203(b). 45 Kan. App. 2d at 1152-53. Although the panel expressed concern over Grimrnett’s “judicially created” requirements for the application of K.S.A. 60-203(b), the panel nevertheless concluded that the statute’s plain language made it inapplicable in Fisher’s case. 45 Kan. App. 2d at 1153-55. This court granted Fisher’s petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b). Substantial Compliance with Mail Service of Process Fisher acknowledges that her service of process may have been technically flawed in relation to the requirements of K.S.A. 60-304(a). But she claims that her compliance with the certified mail method of serving process was substantial enough to invoke the saving provision of K.S.A. 60-204, which states, in relevant part:. “In any method of serving process, substantial compliance therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his or her person, status or property were subject to being affected.” Here, the defendant, being “the party served,” does not dispute that he “was made aware that an action or proceeding was pending in a specified court in which his... person, status or property were subject to being affected.” K.S.A. 60-204. Moreover, the parties do not contest the facts applicable to the manner in which Fisher served the process. Consequently, our task is to review whether the actions taken by Fisher constitute “substantial compliance” within the meaning of K.S.A. 60-204. Standard of Review Defining and applying the statutory concept of substantial compliance will necessárily involve statutory interpretation, over which we exercise de novo review. See Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013). Analysis Although some of the applicable statutes have been amended since Fisher attempted to commence her lawsuit, the parties argue and we apply the statutes in effect at the time of the attempted service of process. Then, K.S.A. 60-303 described the methods of service of process that could be used within this state. One of the acceptable methods was “service by return receipt delivery,” which included “service effected by certified mail . . . evidenced by a written or electronic receipt showing to whom delivered, date of delivery, address where delivered, and person or entity effecting delivery.” K.S.A. 60-303(c). In addition, K.S.A. 60-304, entitled “Service of process, on whom made,” provided further directions. With respect to individuals, other than minors or disabled persons, service could be made “by serving tire individual or by serving an agent authorized by appointment or by law to receive service of process.” K.S.A. 60-304(a). Moreover, K.S.A. 60-304(a) provided specific instructions for the use of service by return receipt delivery for an individual party, to-wit: “Service by return receipt delivery shall be addressed to an individual at the individual’s dwelling house or usual place of abode and to an authorized agent at the agent’s usual or designated address. If service by return receipt dehveiy to die individual’s dwelling house or usual place of abode is refused or unclaimed, the sheriff, party or party’s attorney seeking service may complete service by certified mail, restricted delivery, by serving the individual at a business address after filing a return on sendee stating tire return receipt delivery to the individual at such individual’s dwelling house or usual place of abode has been refused or unclaimed and a business address is known for such individual.” K.S.A. 60-103 defines restricted mail as including the endorsement on its face to “deliver to addressee only.” In other words, a summons and petition addressed to Dr. DeCarvalho and sent certified mail, restricted delivery, would state on its face that it should be delivered only to Dr. DeCarvalho. To reiterate and emphasize the point, if Fisher’s actions substantially complied with the foregoing statutory requirements for that method of service, then K.S.A. 60-204 declares that she effected “valid service of process.” No further inquiry would be necessary. The service of process that Fisher attempts to validate in this appeal was sent to the defendant’s medical clinic by unrestricted certified mail. The Court of Appeals described the statutorily prescribed steps that should be followed to effect service by return receipt delivery at an individual’s business address: “[A]n individual may only be served at a business address by certified mail if the following conditions have been satisfied: (1) the plaintiff first attempts to serve the individual by return receipt delivery at the individual’s dwelling house or usual place of abode; (2) the plaintiff files a return on service indicating that delivery at the individual’s dwelling house or usual place of abode was refused or unclaimed; and (3) the certified mail is then sent to the business address via restricted delivery.” Fisher, 45 Kan. App. 2d at 1140. The panel then agreed with the district court’s assessment that Fisher had failed to satisfy any of those statutory prerequisites for business address service. She did not make an initial attempt to serve the defendant at his dwelling house or usual place of abode; she did not file a return on service indicating that delivery at the doctor’s dwelling house or usual place of abode was refused or unclaimed; and she did not make certified mail service to the doctor’s business address by restricted delivery, i.e., she did not restrict delivery to the addressee only. 45 Kan. App. 2d at 1140-41. In addition, the panel noted that Fisher had failed to ascertain whether the person who signed the return receipt—Phyllis Bieker—was authorized to accept service on behalf of the defendant. 45 Kan. App. 2d at 1141. Noting that the term “substantial compliance” is not statutorily defined, the panel looked at the meaning this court had given the term in Myers, 280 Kan. at 874. Myers addressed substantial compliance in the context of assessing the validity of a tort claimant’s notice to a municipality under K.S.A. 12-105b. A review of prior cases led the Myers court to adopt the following description of substantial compliance: “ ‘ “ ‘compliance in respect to the essential matters necessary to assure eveiy reasonable objective of the statute.’ ” ’ ” 280 Kan. at 874 (quoting Orr v. Heiman, 270 Kan. 109, 113, 12 P.3d 387 [2000]). The panel in this case opined that “due to the similarity in the purpose of the two statutes, it is reasonable to conclude that the ‘substantial compliance’ language in K.S.A. 60-204 is to be defined in the same manner as in K.S.A. 2004 Supp. 12-105b(d).” Fisher, 45 Kan. App. 2d at 1142. The panel noted that the analogy had been utilized by a prior Court of Appeals panel in Taylor ex rel. Gibbens v. Medicalodges, Inc., No. 102,539, 2010 WL 3324408 (Kan. App. 2010) (unpublished opinion), rev. denied 292 Kan. 969 (2011). 45 Kan. App. 2d at 1145. Applying the Myers standard, the panel reiterated all of the ways in which Fisher had failed to follow the statutory directive for mail service at a business address, but it principally relied on the fact that “service was not actually made upon DeCarvalho or his authorized agent,” which the panel declared to be “the most important objective of any method of service of process.” 45 Kan. App. 2d at 1142-43. Accordingly, the panel concluded that, by failing to assure that service was actually made on the defendant or his authorized agent, Fisher failed to substantially comply with the method of service set forth in K.S.A. 60-304(a). Consequently, without substantial compliance, the attempted service of process could not be deemed valid under K.S.A. 60-204. Fisher, 45 Kan. App. 2d at 1147. We agree with the Court of Appeals’ approach of viewing K.S.A. 60-204’s validation provision through tire lens of the Myers definition of substantial compliance, ‘ “ ‘compliance in respect to tire essential matters necessary to assure every reasonable objective of the statute.’ ” ’ ” 280 Kan. at 874. In doing so, we are not unmindful that some prior cases from this court have held that service of process upon a secretary or office manager at a place of business was not sufficient compliance to invoke the validation provision of K.S.A. 60-204. See Haley, 207 Kan. at 463, Thompson-Kilgariff General Insurance Agency, Inc. v. Haskell, 206 Kan. 465, 467-68, 479 P.2d 900 (1971), and Briscoe v. Getto, 204 Kan. 254, 257, 462 P.2d 127 (1969). The underlying rationale in those cases was that K.S.A. 60-204 was not intended to create new methods of serving process. See, e.g., Briscoe, 204 Kan. at 257 (new method of service cannot be originated by K.S.A. 60-204). But unlike the statutory scheme applicable to Briscoe and its progeny, the version of K.S.A. 60-304(a) applicable here specifically permitted Fisher to malee service by return receipt delivery to the defendant’s business address, so long as she fulfilled certain conditions. Consequently, no new method of service is being originated here. Rather, the conditions Fisher failed to meet on an existing method of service are being reviewed to determine whether they were necessary to assure the reasonable objectives of that statutory method of service, i.e., whether Fisher failed to substantially comply with the existing method of service. In applying the Myers’ test for substantial compliance, the panel opined that the most important objective of any service of process method is to actually serve the defendant or the defendant’s authorized agent. Fisher, 45 Kan. App. 2d at 1147. We might quibble with that statement’s overbreadth. We read the statutory language as suggesting that the legislature believed that the paramount objective of any method of service of process is that “the party served was made aware that an action or proceeding was pending in a specified court in which his or her person, status or property were subject to being affected.” K.S.A. 60-204. In some circumstances, e.g., notice by newspaper publication, actual service upon the defendant or authorized agent may not be an essential matter necessary to accomplish the reasonable objective of proper notification. Nevertheless, we do agree with the panel that the legislature intended that, where service is made on an individual by return receipt delivery to a business address, actual service on the defendant or his or her authorized agent is an essential matter that is necessary to assure the objective that the individual receive appropriate notice. The special requirement that the certified mail be sent by restricted delivery to a business address can mean nothing else. In sum, we agree with the panel and the district court on the question of whether Fisher substantially complied with the method of service by return receipt delivery to an individual at a business address. Fisher simply failed to meet tiróse essential conditions that were necessary to assure that the defendant would be made aware that an action or proceeding was pending in a specified court in which his property was subject to being affected. The defendant’s fortuitous acquisition of that awareness does not affect our calculus. K.S.A. 60-204’s validation must emanate from the serving party’s actions. Here, Fisher’s actions were inadequate to be substantially compliant with K.S.A. 60-304(a) and, in turn, the service of process was not valid under K.S.A. 60-204. Voluntary Appearance One of Fisher’s complaints is that Dr. DeCarvalho engaged in procedural gamesmanship by appearing to fully participate in the lawsuit until such time as his challenge to the defective service of process would result in a dismissal with prejudice because of the statute of limitations. As noted, on appeal, Fisher attempts to use K.S.A. 60-303(e) to keep the doctor in the game to answer on the merits. That subsection of the statute dealing with the methods of service of process states: “An acknowledgment of service on the summons is equivalent to service. The voluntary appearance by a defendant is equivalent to service on the date of appearance.” K.S.A. 60-303(e). Fisher contends that the doctor voluntarily appeared when he obtained an extension of time to answer, filed an answer to the petition, and then actively participated in the discovery process. Despite the seductive logic of that argument, it is not supported by our caselaw. Standard of Review An interpretation and application of K.S.A. 60-303(e) presents us with a question of law over which we have unlimited review. See Jeanes, 296 Kan. at 873. Analysis We first briefly address the preservation of this issue. The Court of Appeals acknowledged that this issue was being raised for the first time on appeal, which would normally preclude its consideration. But citing to In re Care & Treatment of Miller, 289 Kan. 218, 224-25, 210 P.3d 625 (2009), the panel invoked the exception to tire general rule for a newly asserted theory that involves only a question of law arising on proved or admitted facts and that is finally determinative of the case. Fisher, 45 Kan. App. 2d at 1148. The defendant did not seek review of that holding. Accordingly, we will likewise consider the argument. Before discussing K.S.A. 60-303(e), we pause to review the relationship between service of process and the applicable statute of limitations on Fisher’s medical malpractice action. Under K.S.A. 60-513(a)(7), the statute of limitations was 2 years, making her petition timely filed on the 2-year anniversary of her alleged injury. But a lawsuit is not properly commenced until service of process is obtained and, except for an extension for good cause shown, that service must occur within 90 days of the filing of the petition for the commencement date to be deemed the filing date of the petition; otherwise, the action is deemed commenced when service of process is completed. K.S.A. 60-203(a). In this case, Fisher had to complete service of process by December 30, 2009, in order for her lawsuit to be deemed to be commenced on October 1, 2009, i.e., to avoid being barred by the 2-year statute of limitations. The defendant obtained a 10-day extension of time to file a responsive pleading on December 23, 2009; he filed an answer to the petition on January 4, 2010; and he thereafter participated in discovery until filing his motion to dismiss on April 26, 2010. If the doctor’s extension request was a “voluntary appearance by a defendant” within the meaning of K.S.A. 60-303(e), then that appearance was the equivalent of service being effected on or before December 23, 2009, which would be prior to the December 30, 2009, service of process deadline to relate back the commencement of the action to the filing date. In other words, the defendant’s statute of limitations challenge would fail. If Fisher must rely on the defendant’s January 4, 2010, answer or other subsequent actions in tire proceeding to establish the date of the defendant’s voluntary appearance, and correspondingly to establish the date of service under K.S.A. 60-303(e), then the commencement of the action would not relate back to the filing date and Fisher’s lawsuit would not comply with the statute of limitations. The Court of Appeals relied on the 40-year-old decision in Haley to find that the defendant’s extension request was not a voluntary appearance within the meaning of K.S.A. 60-303(e). Fisher, 45 Kan. App. 2d at 1149. Haley held that “[a] motion for extension of time to answer, . . . may not be regarded as a waiver of lack of jurisdiction of the person of defendant because of insufficiency of process, or insufficiency of service of process.” 207 Kan. 459, Syl. ¶ 4. Haley opined that K.S.A. 60-212 abolished the “old distinction between general and special appearances” and now provides that a defendant only waives the defense of lack of personal jurisdiction by failing to assert the defense in a 60-212 motion or in the answer. 207 Kan. at 465. In other words, a defendant retains the right to challenge personal jurisdiction up to the time that the defendant files his or her answer to the petition. Fisher argues that Haley was decided prior to the enactment of K.S.A. 60-303(e) and we should employ tire presumption that a legislative revision of existing law presupposes that the legislature intended to change tire law as it existed prior to the amendment. See Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs, 290 Kan. 446, 464, 228 P.3d 403 (2010). That argument evaporates when one discovers that K.S.A. 60-303(e) merely effected a relocation of the provision that was previously part of K.S.A. 60-304(h). See L. 1990, ch. 202, secs. 4 and 5. When Haley was decided, K.S.A. 60-304(h) provided: “An acknowledgment of service on the summons, or the voluntary general appearance of a defendant, is equivalent to service.” See L. 1970, ch. 235, sec 1. In other words, the Haley court reached its decision in spite of a savings provision that equated a party’s voluntary general appearance with service of process. Thus, we decline to declare that the legislature intended to change the law or to overrule Haley by enacting K.S.A. 60-303(é). We do acknowledge that Haley’s abolition of the distinction between a special appearance and a general appearance is rendered somewhat illusory by its holding that a defendant does not waive a personal jurisdiction challenge until after the answer is filed. If a defendant files an answer to a petition without having been served a summons, one who employs common meanings for common words would have to view that action as a “voluntary appearance” by a party. Yet, if filing an answer is truly a voluntary appearance (and there are no longer any special appearances), K.S.A. 60-303(e) would equate that action with a service of process, thus curing the defense of insufficiency of service of process that Haley says is not waived until after the answer is filed. In other words, the act of raising the defense negates the defense, even though the defendant has not waived the defense. But we have' a canon of construction that directs us to construe statutes to avoid unreasonable or absurd results, based upon a presumption that the legislature does not intend to enact meaningless legislation. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (2013). Moreover, the Haley holding has been good law for decades. See Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 100, 106 P.3d 492 (2005) (citing to Haley). Accordingly, we overlook any logical disconnect and follow the precedent that requesting an extension of time to file an answer is not a waiver of defendant’s challenge to personal jurisdiction based upon an insufficiency of the service of process, notwithstanding the provisions of K.S.A. 60-303(e). Additional Time to Effect Service Pursuant to K.S.A. 60-203(b) Finally, Fisher argues that, even if die district court correcdy invalidated her initial service of process, the plain language of K.S.A. 60-203(b) allowed her an additional 90 days after the invalidity adjudication in which to obtain valid service of process. We agree. Standard of Review Once again, this issue involves statutory interpretation, which is subject to unlimited review by this court. See Jeanes, 296 Kan. at 873. Analysis The provisions of K.S.A. 60-203(b) applicable here state: “If service of process or first publication purports to have been made but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have been commenced at the applicable time under subsection (a) if valid service is obtained or first publication is made within 90 days after that adjudication, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff.” The provision was originally proposed by the Kansas Judicial Council in response to the holdings in such cases as Haley and Bray v. Bayles, 228 Kan. 481, 484-85, 618 P.2d 807 (1980), both of which found defective service of process where the petition and summons were served upon business secretaries or receptionists. See Februaiy 9, 1983, Minutes of the House Committee on Judiciary. This court would subsequently observe that the 1983 version of K.S.A. 60-203(b) was enacted for the express purpose of correcting the injustice that existed in cases where the service was defective, die defendant knew of the action through the faulty process but did not make any substantive objection to the defective service until after the time for service had passed, and the statute of limitations had run. See Hughes v. Martin, 240 Kan. 370, 374, 729 P.2d 1200 (1986). A decade later, a panel of the Court of Appeals opined in Grimmett v. Burke, 21 Kan. App. 2d 638, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996), that the intended curative effects of K.S.A. 60-203(b) should be narrower than the plain language would indicate. The panel believed that the statute could be construed in two ways: “[Ojne is extremely liberal and the other appears to be a commonsense approach. A veiy liberal construction gives the plaintiff a second chance at service. It would establish that a plaintiff always gets a second chance under 60-203(b) when his or her original service has been determined invalid. This would be true no matter how inept or how lacking in good faith the original service may have been. In the extreme, a liberal approach of this nature would simply ignore the first service and extend the process far beyond applicable time frames. This approach would allow a party to simply leave a summons for John Doe at a bar, at a church, at Arrowhead Stadium, at the courthouse, or any other place and still insist that by doing so the party had purported’ to serve a defendant. Such a liberal construction is ludicrous; we do not believe it was intended and will not adopt that approach. The purpose of K.S.A. 60-203(b) is to give a second chance at service to a party whose original service was declared invalid despite the fact drat it gave the defendant notice of suit.” 21 Kan. App. 2d at 647. In order to avoid the results it perceived were ludicrous, the panel declared that before K.S.A. 60-203(b) can apply, the plaintiff must show that the defendant was given actual notice of having been sued. Then, the panel divined a list of factors that it said should exist, namely: “(1) The original service must have ‘appeared’ to be valid and the returns by the sheriffs office or other process servers must indicate that the service was valid. (2) The record should show diat the plaintiff believed in good faith that his or her service was valid and relied on that validity to his or her detriment. (3) The plaintiff had no reason to believe the defendant was contesting service until after the statute of limitations had run, but had no opportunity to take steps to correct the defective service.” Grimmett, 21 Kan. App. 2d at 647-48. The Grimmett panel then declared: “[B]y limiting the phrase purports to have been made’ to those situations alluded to above, we correct the problem 60-203(b) was passed to correct.” (Emphasis added.) Grimmett, 21 Kan. App. 2d at 648. That assessment would prove to be woefully inaccurate. As the panel in this case observed, it was “unable to find a single published decision where the provisions of K.S.A. 60-203(b) were applied successfully to save a case from dismissal,” after Grimmett judicially created its requirements. Fisher v. DeCarvalho, 45 Kan. App. 2d 1133, 1153, 260 P.3d 1218 (2011). That observation included the Grimmett case itself, where the panel found that the plaintiff could not pass its newly minted test for curing defective service. Grimmett, 21 Kan. App. 2d at 649. Instead of correcting the problem K.S.A. 60-203(b) was passed to correct, Grimmett exacerbated the problem. Inexplicably, then, the Supreme Court adopted the Grimmett holdings without question. Pieren-Abbott, 279 Kan. 83, Syl. ¶ 8. That absence of critical analysis is curious, at best, given that Grimmett appeared to sidestep our canons of statutory construction. The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Northern Natural Gas Co., 296 Kan. at 918. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read something into the statute that is not readily found in it. In re Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013). Perhaps most importantly, “ ‘the court cannot delete vital provisions or supply vital omissions in a statute.’ ” Kenyon v. Kansas Power & Light Co., 254 Kan. 287, 292-93, 864 P.2d 1161 (1993) (quoting Harris v. Shanahan, 192 Kan. 183, 196, 387 P.2d 771 [1963]). In other words, no matter how ludicrous an appellate court may find a legislative enactment to be, the court is not free to completely rewrite the statute to make the law conform to what the court believes it should be. To reiterate, the statute provides a plaintiff with an additional time to obtain service of process on a defendant under the following circumstances: “If service of process or first publication purports to have been made but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service.” K.S.A. 60-203(b). Grimmett’s condition precedent that the plaintiff must show that the defendant was given actual notice of having been sued does not appear anywhere in K.S.A. 60-203(b). Likewise, the statute does not require an appearance of validity; it does not require the plaintiff to possess a good-faith belief that the service was valid; and it does not purport to apply only where the plaintiff had no reason to believe the defendant was contesting service until after the statute of limitations had run and had no opportunity to correct the defective service. In short, the plain language of the statute does not support Grim-mett’s holdings. Apparently, the Grimmett panel believed that it was invoking tire general rule that courts should construe statutes to avoid unreasonable results and should presume that the legislature does not intend to enact useless or meaningless (or ludicrous) legislation. See Southwestern Bell Tel. Co. v. Beachner Constr. Co., 289 Kan. 1262, 1269, 221 P.3d 588 (2009). But, as Judge Atcheson pointed out in his separate opinion in Kuhn v. Schmidt, 47 Kan. App. 2d 241, 255, 277 P.3d 1141 (2012) (Atcheson, J., concurring), the Grimmett panel’s perceived “the sky will fall” absurdity was illusory. Should a plaintiff attempt to serve John Doe process by leaving papers at a bar, at a church, at Arrowhead Stadium, at a courthouse, or at any other place where the defendant is unlikely to receive it, then the defendant would not know about the lawsuit, the defendant would not challenge the sufficiency of the service, and die district court would not adjudicate the service to be invalid so as to trigger the applicability of K.S.A. 60-203(b). Kuhn, 47 Kan. App. 2d at 255. Similarly, the plaintiff would be unable to take default judgment against the defendant because the plaintiff would be unable to establish that service had been legally effected. 47 Kan. App. 2d at 255. In sum, as Judge Atcheson aptly noted: “On closer examination, the horrible doesn’t seem all that horrible— certainly not fearsome enough to warrant jiggering K.S.A. 60-203(b).” 47 Kan. App. 2d at 255. Rather than saving K.S.A. 60-203(b) from absurdity, the Grim-mett factors actually tend to render that savings provision meaningless. If a plaintiff can jump through the Grimmett hoops, especially the requirement that the original service and return appear to be facially valid, then the plaintiff has most likely met the substantial compliance test of K.S.A. 60-204. In that event, the service is statutorily deemed to be valid, negating the requisite condition in K.S.A. 60-203(b) that the service be adjudicated invalid. In other words, if a plaintiff can meet the Grimmett factors to apply K.S.A. 60-203(b), the plaintiff probably does not need to use it. Furthermore, as Judge Atcheson noted, K.S.A. 60-203(b) was enacted to change the result reached in such cases as Briscoe and Bray. Kuhn, 47 Kan. App. 2d at 251-52. But in those cases, the returns did not indicate valid service on their face, so that construing the statute to require such facial validity would not have changed the result in those cases and, consequently, that construction does not accomplish what the legislature obviously wanted to do. Throwing up additional roadblocks to the accomplishment of legislative intent runs afoul of our duty to give effect to the will of the legislature. See Kansas-Bostwick Irrigation District v. Mizer, 176 Kan. 354, 365, 270 P.2d 261 (1954). In fact, the legislature has specifically told us that “[t]he provisions of [the code of civil procedure] shall be liberally construed and administered to secure the just, speedy and inexpensive determination of every action or proceeding.” K.S.A. 60-102. Moreover, the law prefers that cases be decided on their merits rather than on technical compliance with procedural rules. See Bazine State Bank v. Pawnee Prod. Serv., Inc., 245 Kan. 490, 495, 781 P.2d 1077 (1989) (In determining whether to set aside a default judgment, a court should resolve any doubt in favor of the motion so that the cases may be decided on their merits.). In that same context, courts are also encouraged to remember that litigants should not be unnecessarily penalized for the simple neglect of their attorney. Jenkins v. Arnold, 223 Kan. 298, 299, 573 P.2d 1013 (1978). The panel in this case recognized that “Kansas cases applying the Grimmett factors have adopted an unnecessarily restrictive view of K.S.A. 60-203(b) that is not supported by the plain language of the statute.” Fisher, 45 Kan. App. 2d at 1153. We agree and hereby disapprove of the Grimmett factors and the accompanying restrictive view of K.S.A. 60-203(b). The statute means what it says. We begin our analysis of the plain language of K.S.A. 60-203(b) with the phrase “purports to have been made” and then factor in the phrases “any irregularity in form or procedure” and “any defect in making service.” As the Court of Appeals correctly observed, “[t]he provisions of K.S.A. 60-203(b) are triggered only when the original service of process ‘purports to have been made’ but is later declared invalid.” 45 Kan. App. 2d at 1153. The Court of Appeals then dutifully looked at tire Hughes court’s definition of the verb “purport,” which was “ ‘to have die appearance of being.’ ” Hughes, 240 Kan. at 375. But then the panel applied the Hughes definition as if it meant “to have the appearance of being valid.” That led the panel to return to the Grimmett rationale, which we reject herein, that a service of process cannot purport to have been made unless it appears to be facially valid. Our disconnect with the panel’s reasoning appears to derive from the meaning it places on tire word “being” in the Hughes definition of purport. As we view it, a service of process can have the appearance of being, i.e., can appear to exist, even though it was not created in accordance with the statutory directive, i.e., does not appear to be valid. Perhaps it would have been better if Hughes had included all of die dictionary definition of “purport,” which includes tire following language: “To profess or claim, esp. falsely; to seem to be <the document purports to be a will, but it is neither signed nor dated>.” Black’s Law Dictionary 1356 (9th ed. 2009). That definitional example directly contradicts the panel’s suggestion that a document cannot “purport” to be something where a facial defect would refute its validity. Armed with a definition that more clearly captures the common meaning of “purport,” we have no hesitation in finding that “service of process . . . purports to have been made” in this case. A petition and summons were sent by return receipt delivery to the defendant at his business address, and a return receipt was signed and mailed back to the plaintiff. Service of process had the appearance of being, i.e., of existing. Then, Fisher filed a return of service and proceeded to prosecute the case, including serving interrogatories upon the defendant. Obviously, the plaintiff was professing or claiming to have effected service of process upon the defendant so as to allow the matter to proceed on its merits. In short, the Court of Appeals erred in holding that service of process was not purported to have been made in this case. Moving on to the remaining statutory language, we note that the panel opined that the legislature did not set the standard so low that K.S.A. 60-203(b) could “be applied to save a cause of action any time service of process is found to be defective for any reason.” Fisher, 45 Kan. App. 2d at 1154. The panel then speaks to service that has been “adjudicated to have been invalid due to any irreg ularity in form or procedure.” 45 Kan. App. 2d at 1154. But that ignores the plain and unambiguous statutoiy language that permits a cure for “any defect in making service.” Our function is not to decide how low the bar should be set, but rather we simply construe what tire legislature has said about setting the bar. In Hughes, this court performed that construction: “K.S.A. 60-203(b) is also declared to be applicable to any situation where the original service was invalid due to ‘any irregularity’ in form or procedure or ‘any defect’ in making service. The use of the word any makes crystal clear the legislative intent that the statute is to be liberally applied in cases involving any irregularity or any defect in the service of process.” 240 Kan. at 375-76. We, too, find the language of K.S.A. 60-203(b) to be crystal clear. That language does, indeed, provide that its provisions can be applied to save a cause of action any time service of processes purported to have been made and is thereafter found to be defective for any reason. Any suggestion to the contrary is hereby disapproved. Consequently, we find that the district court erred in dismissing this case with prejudice without permitting the plaintiff the additional time set forth in K.S.A. 60-203(b) in which to obtain valid service of process. We remand with directions to allow the plaintiff an opportunity to utilize the savings provisions of K.S.A. 60-203(b). Reversed and remanded.	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