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The opinion of the court was delivered by
Dawson, J.:
This was an a-ction to reform a policy of accident insurance and to recover thereon as reformed.
Plaintiff’s evidence tended to prove that on or about June 12, 1922, defendant’s agent, J. C. Salisbury, called on plaintiff and his partner, W. H. (Pete) Hill, at Arkansas City. Plaintiff and Hill were young men just out of the army and were aviators and parachute jumpers. They made their temporary headquarters at the garage of Art Hill, a brother of W. H. Hill. Plaintiff’s agent, Salisbury, solicited their applications for insurance. Hill said: “You don’t want to see us, you want to see my .brother, you can’t insure us as we are aviators.”. Salisbury answered: “Oh yes, I can, too. I just came from Wichita and insured the whole bunch [of aviators] up there.” Salisbury drew out a little book and read the names of aviators in Wichita whom he professed to have insured. Those were known to plaintiff and Hill, and so they -gave Salisbury their confidence. He offered them a policy which would pay specific sums for specific accidents, so much for a broken bone, so much for the loss of a finger, an arm, an eye, or a leg, so much for sickness, and other details. Plaintiff and Hill admitted that the proposed insurance was attractive but that they were short of money, that they were starting for Nebraska and neéded all their funds. A friend, Monroe George, who was one of a number of bystanders who heard the conversation between Salisbury and plaintiff and his partner, said they were foolish, that it was too good a policy for the young men to pass up, and he himself advanced the money for them, $20, which was a $10 payment on a policy for plaintiff and $10 on a similar policy for his partner. The total premium was $20 per annum on each policy, and the balance due was to be paid when the policies were delivered. At the time of the negotiations plaintiff told Salisbury that he was a parachute jumper. Salisbury said:
“You ought to be protected more in. that, more so than in flying ... It don’t matter how you get hurt, get hurt any way in the hotel, car, railroad, any place, . . . got policy anyway.”
A witness testified:
“He [Salisbury] said it didn’t matter how you get hurt, you see — anywhere, didn’t matter where it was, in the air, or any place, said you were insured — said it covered you.”
The agent also said the policy would go into effect immediately, and would cover the plaintiff’s projected trip to Nebraska. He also said it would probably be thirty days before the policies would be received, but told them not to worry as it would take the policy a long time to go through the head office and back.
The young men left for Nebraska the same day, and gave aerial exhibitions at various places in that state. At Hickman, Neb., on August 12, while giving an aerial performance, plaintiff touched off what he supposed was a harmless smoke bomb, but which was in fact an instantaneous trench mortar bomb which had been delivered by mistake of the manufacturer. It blew the plaintiff out of the aeroplane but by chance he fell back on top of it. The aeroplane was set on fire and partly wrecked but the pilot managed to bring it to the ground. Plaintiff was badly injured, and confined to a hospital for some time, and under the doctor’s care for several months.
The policy which the defendant did issue to plaintiff and which was forwarded to his address at Arkansas City during his absence in Nebraska and which he consequently did not see until after he was injured, contained a copy of his application for insurance and gave his occupation as “aviator”; but the policy contained certain provisions, amongst which were these:
“This insurance does not cover ... (2) while in or on a baloon or other aerial machine or conveyance; . . . any loss contributed to or caused by . . . exposure to unnecessary danger; . . . while engaged in . . . handling explosives or fire arms.”
In the correspondence which passed between the parties, the general agent of defendant wrote to plaintiff:
“Sept. 6, 1922.
“. . . Our underwriting department was rather displeased that Mr. Salisbury should write you this particular form as the policy does not cover aviation in any sense of the word, and requested that I write you submitting our [another form of policy] which will give you full protection for all duties of your occupation. While the contract you hold pays indemnity for the accidents and illnesses mentioned, I believe you would be more satisfied with a blanket contract. Therefore, if the enclosed propositions meet with your approval, kindly complete and return the application and we will credit your payment to Mr. Salisbury on the new policy. Kindly return your old policy with the application. [Signed] “H. Wayne Russele,
“General Agent.”
Plaintiff’s claim for insurance was denied, and this action was begun. Plaintiff’s petition contained the characteristic allegations of an action to reform the policy to conform to the contract agreed upon with Salisbury and for which the defendant received the agreed premium.
Defendant first demurred, and then answered with a general denial, and denied the authority of Salisbury to make such a contract for the company as that alleged by plaintiff, and alleged that while Salisbury had authority to receive applications for accident and health insurance upon the regular printed blanks furnished by the company, he had no authority to change such printed applications, nor to vary the policy forms issued by defendant; that the authority of Salisbury extended no further than to receive the written application of plaintiff for insurance upon the printed blanks supplied by the company and to forward such written application to the defend ant company, and after the issuing of the policy to countersign same and to deliver it to the plaintiff. Defendant further stated that Salisbury had no authority for and on behalf of the defendant to make the alleged representations set forth in the petition, as to the scope and the coverage under such policy, nor did he have authority to make the alleged representations or promises as to the time when said insurance would become' effective.
“Defendant further states that it does not issue policies insuring against injury, disability or death to persons engaged in the occupation and business of aviation, or to persons riding in or operating aeroplanes, balloons, or aerial devices.”
The jury returned a verdict for plaintiff and answered two sets of special questions, which in part read:
FIRST SERIES.
“1. State fully how the defendant was injured. A. Explosion. . . .
“3. If you find it was by the explosion of a bomb, where was the bomb at the time of the explosion? A. In his hand. . . .
“5. Might the explosion have occurred if held in the same manner and way by the plaintiff in some other vehicle? A. Yes. (Agreed to by plaintiff.)
“6. Was there an agreement between the plaintiff and Salisbury as to the terms of the policy? A. Yes.
“7. If you answer question 6 ‘yes,’ then state fully what was the agreement. A. Agreed to insure against all accidents. . . .”
SECOND SERIES.
“Q. 1. Was J. C. Salisbury, on the 12th day of June, 1922, the agent of the defendant insurance company, authorized to solicit accident insurance, take applications, collect and remit premiums, and to receive and deliver policies of accident insurance to those whom he solicited to take insurance in the defendant company? A. Yes.
“Q. 2. Did the defendant, J. C. Salisbury, on or about the 12th day of June, 1922, represent to the plaintiff that the policy of insurance then applied for by the plaintiff, would insure the plaintiff against accidental injuries, and would pay the plaintiff on account of said injuries so sustained the sum of $250 for the loss of each finger, or part thereof, the sum of $250 for each broken bone, the sum of $25 per week for hospital expenses, the sum of $25 per week for medical and surgical bills and the sum of $25 per week for lost time? A. Yes.
“Q. 3. Did the said Salisbury represent to the plaintiff that said policy of insurance would take effect at once upon the signing of the application? A. Yes.
“Q. 4. Did the said Salisbury represent to the plaintiff that said policy would insure him against accidents sustained by him while in his business as an. aviator, parachute jumper, or no matter how or where sustained? A. Yes.”
The first error assigned pertains to the overruling of defendant’s demurrer to the evidence. There was no real dispute in the trial court that Salisbury had represented to the plaintiff that the sort of insurance he was selling him would protect plaintiff against accidental injuries suffered in his work, employment and business as an aviator, and in any work, employment or business in connection with aviation. But defendant argues that plaintiff was not injured in his business as an aviator or in any work incidental to aviation; that he was injured by the explosion of an aerial bomb, which was wholly separable from an accident in the course of aviation; and that plaintiff’s petition had not alleged that Salisbury represented that the policy would insure him against accidents due to explosions. What the petition did allege was that Salisbury represented that the insurance he was offering plaintiff would protect him “in the course of his work, employment and business in connection with aviation, as follows: . . . while engaged in exhibition work in an aeroplane, and in dropping aerial bombs for exhibition purposes from said aeroplane one of said bombs prematurely exploded,” etc.
The testimony was abundant and all to one effect — that the dropping of aerial bombs was part of the work of an aviator. The evidence disclosed that plaintiff and his partner were incredulous when Salisbury first offered to insure them. They told him they were aviators and parachute jumpers and that it would do them no good to take out insurance unless it covered the risks of their peculiar business. And, without repeating in detail Salisbury’s representations, it was clearly shown that the insurance he proposed to sell them would cover them wherever they were, in the air, on the ground, any place. Salisbury said: “We insure everything. It covers all kinds of accidents.” The evidence to support plaintiff’s cause of action was not defective on account of variance and was sufficient as against a demurrer. (Roberts v. Surety Co., 101 Kan. 375, 376, 166 Pac. 498.)
The next error urged relates to the reformation of the policy contract, particularly as to the date when it should become effective. Salisbury procured plaintiff’s application and received the first half of a year’s premium on June 12. Salisbury represented that the insurance became effective instanter. By the rules of the company Salisbury concededly had the power to determine and insert in the policy the date when it was to become effective. The answer virtually conceded that much, and the concluding recital of the policy and subscriptions thereto read:
“In Witness Whereof, the said company has caused this policy to be signed by its President and Secretary, but the same shall not be effective until properly dated and countersigned by duly commissioned authority of the company. “Dated this 15th day of August, 1922.
“Examined and countersigned by
“Countersigned at Wichita Kansas
“This day 15th of August, 1922
“J. C. Salisbury
“A. E. Eorrest, E. C. Waller,
“Secretary President.”
It is absurd to suppose that plaintiff was paying cash down on June 12, for insurance which was not to become effective for two months and three days thereafter; and it is futile to argue that Salisbury had no authority to agree as to the time when the insurance would become effective when the very policy which the defendant did issue carried on its face the proof of Salisbury’s authority to do so. In disregard of his agreement Salisbury fraudulently fixed a date three days after the plaintiff was injured and after the defendant’s liability had accrued. Under the evidence the policy contract was not improperly reformed. (Insurance Co. v. Stone, 61 Kan. 48, 58 Pac. 986; Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245; Palin v. Insurance Co., 92 Kan. 401, 140 Pac. 886; Hammond v. Insurance Co., 100 Kan. 582, 165 Pac. 291; Nichols v. Casualty Co., 113 Kan. 484, 214 Pac. 1111.)
The next contention is that Salisbury had no authority to issue the policy. Perhaps so. The policy was issued by the joint or ■coordinating action of various officials acting for defendant. On Salisbury’s initiative the company executed it; Salisbury countersigned and dated it and mailed it. Salisbury solicited the business. He represented what sort of insurance he was selling. He made the agreement with plaintiff to insure him against all sorts of accidents, in the air, or any place, and accepted the first payment therefor. The company acquiesced, in part at least, in what Salisbury had agreed to. It kept the money. (Insurance Co. v. Stone, supra.) It did issue a policy to plaintiff on Salisbury’s initiative. It wrote to plaintiff that one of its departments was rather displeased that '“Salisbury should write you this particular form as the policy does ■not cover aviation.” The company declared that the only sorts ■of insurance which Salisbury had authority to sell were such policies as were issued by the company, and it is clear from defendant’s letter of September 6, set out above, that defendant was in the business of insuring aviators; and the just inference from all these facts, as well as from minor incidents of some evidential value needless to narrate, was that Salisbury was not without authority to contract with plaintiff as he did, and that there was acquiescence in that exercise of authority to such an extent that defendant actually instituted negotiations with plaintiff to induce him to accept a different form of policy from the one Salisbury had agreed to furnish and different, also, from the one Salisbury delivered to him.
Among the cases cited by appellant is Priest v. Life Insurance Co., 116 Kan. 421, 427, 227 Pac. 538. The court discerns no analogy between that case and the one before us. Here it is not even pretended that plaintiff made any false statements in the application signed by him at Salisbury’s solicitation. The application contained nothing of consequence beyond the recital that he desired accident and health insurance, gave his name, age, occupation “aviator,” and the name of his beneficiary, and some other inconsequential data. Moreover in the Priest case a very serious question of alleged collusion between the insured and the agent to defraud the insurance company was involved. The other authorities cited by appellant have been carefully noted, but they cannot minimize the potency of our own decisions already cited herein.
Among the minor incidents in the record is one concerning Salisbury. On April 29, 1922, defendant wrote to the superintendent of insurance:
“April 29, 1922.
“Supt. of Insurance,
“Topeka, Kans.
«
“Kindly cancel license No. 30932 issued to J. C. Salisbury of Topeka, Kan., dated April 19, 1922, and oblige.”
On June 13, 1922, defendant wrote a second letter:
“Supt. of Insurance,
“Topeka, Kans.
“Your records will disclose that on the 29th day of April 1922, we requested cancellation of license of J. C. Salisbury, Topeka, Kan. Since that time Mr. Salisbury has satisfactorily adjusted his matter with us and this may be treated as our request for an elimination of the record that was made against him at our request.”
On September 6,1922, defendant wrote a third letter:
“Superintendent of Insurance,
“Topeka, Kansas.
“On account of numerous complaints of misrepresentations you will kindly cancel license No. 35946 issued under date of June 29th, 1922, to J. C. Salisbury, and oblige. [Signed] “H. Wayne Russell,
“General agent.”
Defendant argues that these letters show that on June 12, 1922, Salisbury was not the agent of defendant in any respect. The significance of the letters hardly goes to that extent. Presumably the superintendent acted promptly and complaisantly on receipt of each of these letters, and it may be presumed that on June 12 Salisbury might have had no license from the state of Kansas to act as agent for defendant. But the letters do not prove that he was not its agent on that day; and whether he was or not, it treated him as such, accepted the business he procured for defendant, and acquiesced in his exercise-of an agent’s authority in his dealings with plaintiff. Nor is the last letter to the superintendent of insurance without its evidential significance in this lawsuit. It was written on the same date and by the same officer of defendant who wrote to plaintiff speaking of the company’s displeasure that Salisbury should have contracted with plaintiff for the sort of policy issued to him. The letter tends- to show that Salisbury did not lack authority to make contracts for the company, but that he did have such authority and was wont to make a bad use of it; that he was prone to get the company into difficulties and to make misrepresentations for which the company was put to so much annoyance that it had to get rid of him altogether.
There is no error in this record of sufficient consequence to disturb the judgment.
Affirmed.
Burch, J., concurs in the result.
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The opinion of the court was delivered by
Harvey, J.:
Three colored men, Lloyd McReynolds, Vernon Clay and David Parker, were charged jointly with the murder of Charles Lambert, who was shot and killed June 7,1924, on the main highway leading'from Kansas City to Leavenworth. Lloyd McReynolds was tried separately and found guilty of murder in the first degree, and he has appealed. The state’s theory was that the defendants were equally guilty, and the evidence on behalf of the state tended to show the following facts;
Lambert was engaged in the produce business at Leavenworth, where he bought produce, which he took to Kansas City and sold at the market. On June 6 he took four truckloads of strawberries to Kansas City. Each truck had a driver. After the boxes were unloaded, the other drivers returned to Leavenworth, but Lambert and one young man, George Kerston, stayed in Kansas City. The next morning Lambert disposed' of his berries and started home soon after noon. Lambert frequently carried large sums of money on his person. McReynolds, Clay and Parker, all of whom reside in Kansas City, Kan., were over at the Kansas City, Mo., market on the morning of June 7, and in some way were informed that Lambert had about $1,600 with him and that he had no gun. The three of them plotted to hold Lambert up on his road home and take the money away from him. When Lambert and Kersten started home they drove across the viaduct to Kansas City, Kan., and to the DeCoursey Creamery, where they loaded the truck with crates covered with tarpaulin, and started out the paved highway toward Leavenworth. The three def endánts followed in McReynolds’ car. At one point on the road Lambert had some trouble with a tire and stopped to fix it. The defendants, who were some little distance back of him, stopped their car and waited until Lambert went on. At the halfway house Lambert and Kersten stopped for lunch. It was then about 2:30. The three defendants drove by the place some little distance and stopped and waited until Lambert passed them. Lambert left the halfway house about three o’clock and drove on toward Leavenworth, the three defendants following him. At a place on the highway before Lansing was reached the three colored men drove their car up to the side of Lambert’s truck, their plan being for one of them to climb onto the truck and to attack Lambert who was sitting on the front seat, but because the truck was so full of crates, that could not be accomplished. They drove their car to the side of Lambert’s truck and told him to get over to the side of the road, and one of the colored men shot at the tire on Lambert’s truck. ■Lambert drew a gun and fired. Several shots were exchanged, and Lambert was shot through the intestines and died the next day as a result thereof. By the time the shooting was over the car in which the colored men were riding had dropped back of the truck. Defendants then turned around and’ started back toward Kansas City. Instead of going directly to Kansas City, they drove off on a side road, where Clay and Parker got out of the car and went over to a little station to catch the interurban. McReynolds drove on in to Kansas City. Because of the peculiar markings of the car which was owned by McReynolds, he was located and taken into custody and made a written statement from which the other two were arrested. Upon the trial of McReynolds, Parker was a witness for the state. Clay, who had been separately tried the previous day and found guilty in the first degree, was a witness for McReynolds.
The evidence on behalf of the defendant tended to show that he had a taxi stand in Kansas City, Kan., and two taxi cars of his own, which he operated; that he was acquainted with Clay, who on the morning of June 7 came to his stand and hired McReynolds to drive him to Leavenworth, and paid him $8 for the trip. That Clay stated he wanted to go to Leavenworth to take part in a crap game which he understood was to be played there that afternoon; that when they started to Leavenworth they met Parker, whom Clay invited to go with them. There was evidence that McReynolds had a good reputation as a law-abiding citizen; that he had never been connected or charged with being connected with any crimes or offenses, and he testified that he had no knowledge of Lambert and that he did not know Parker; had never met him until that day. McReynolds took the witness stand in his own behalf, and on cross-examination he was asked specifically about his acquaintance with Parker, and said he did not know him. He was then asked, if on the Saturday evening before the killing of Lambert he had not driven Parker and Clay in his taxi, and if the three of them had held up a street-car conductor, robbed him, and divided the money, all of which he denied.
In rebuttal the state called Parker and asked him about his acquaintance with McReynolds. He testified he had known McReynolds about three years; that McReynolds knew his name, called him both by his first name and his last name. He further testified that he and Clay rode with McReynolds on the night of June 5. He was then asked whether or not on that occasion he and Clay held up a conductor of a street car. This was,objected to as not being proper rebuttal and as having been asked purely for the purpose of prejudicing defendant before the jury. The court overruled the objection, but instructed the jury that “this testimony is for the purpose of showing the acquaintance, if there was any, between this man [Parker] and McReynolds.”
“Mr. McNaughton (county attorney): Not altogether that, if your honor please. I asked McReynolds the question whether or not a street-car robbery had been pulled off on the night of the 5th and he had transported the proceeds of that.
“The Court: We are not trying that case. I think it should only be considered by the jury for the purpose of determining whether or not Parker and McReynolds were acquainted, and for the purpose of showing their relation with each other, and for the purpose of showing association with each other, and for no other purpose.”
The defendant objected to the testimony being considered for any purpose, for the reason that it is not proper rebuttal, and was asked only for the purpose of prejudicing the jury against the defendant. The county attorney then asked the following:
“Q. After this ride you and Clay had with McReynolds, state whether you; Clav and McReynolds had any property dealings?
“The Court: What night?
“Q. The night qf the 5th of June?
“The Court: He may answer.
“Mr. Judy (attorney for defendant): I object to the question as incompetent, irrelevant and immaterial; not proving or tending to prove any issue in the case; not rebuttal; prejudicing the jury against this defendant.
“Q. Answer that question, yes or no. A. Yes, sir.”
The errors complained of in the appeal relate to this rebuttal testimony, both to the questions asked by the county attorney and the rulings of the court upon the admission of the evidence, and the failure of the court to grant a new trial, which raises the same questions.
Appellant contends that, being on trial for murder of June 7, he was not called upon to defend a charge of highway robbery of June 5, and further contends that McReynolds having been asked upon the cross-examination about the holdup of June 5, and having denied that any such took place, the state was bound by his answer, and in support of his contention cites The State v. Kirby, 62 Kan. 436, 63 Pac. 752; The State, ex rel., v. Stout, 101 Kan. 600, 168 Pac. 853; The State v. Bowers, 108 Kan. 161, 165, 194 Pac. 650; The State v. Hays, 113 Kan. 588, 590, 215 Pac. 1109, and other Kansas cases therein cited.
The general rule is that on a prosecution for a particular crime, evidence which in any manner shows or tends to show that accused has committed another crime wholly independent of that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible. (The State v. Raynolds, 5 Kan. App. 515; The State v. Kirby, 62 Kan. 436, 63 Pac. 752; The State v. Wheeler, 89 Kan. 160, 130 Pac. 656.)
“While there are several well-recognized exceptions to the rule excluding evidence of other offenses, and these exceptions are founded on as much wisdom and justice as the rule itself, the rule should be strictly enforced and should not be departed from except under conditions which clearly justify such a departure.” (16 C. J. 587.)
The general rule does not apply where the evidence of another crime tends directly to prove defendant guilty of the crime charged, or, as otherwise stated, evidence which is relevant to defendant’s guilt is not rendered inadmissible because it proves or tends to prove him guilty of another and distinct crime.. (McFarland v. The State, 4 Kan. 68; The State v. Folwell, 14 Kan. 105; The State v. Adams, 20 Kan. 311; The State v. Cowen, 56 Kan. 470, 43 Pac. 687; The State v. Hansford, 81 Kan. 300, 106 Pac. 738.)
Evidence of other crimes similar to that charged is relevant and admissible when it shows or tends to show a particular criminal intent which is necessary to constitute the crime charged. (The State v. Lowe, 6 Kan. App. 110; The State v. Burns, 35 Kan. 387, 11 Pac. 161.)
Evidence to show the motive pertaining to the commission of crime is relevant and admissible notwithstanding it also shows the commission ,by accused of another crime of similar or dissimilar character. (The State v. Reed, 53 Kan. 767, 37 Pac. 174.)
“Where the crime charged is part of a plan or system of criminal action, evidence of other crimes near to it in time and of similar character is relevant and admissible to show the knowledge and intent of the accused and that the act charged was not the result of accident or inadvertence. This rule is often applied where the crime charged is one of a series of swindles or other crimes involving a fraudulent intent for the purpose of showing this intent.” (16 C. J. 591.)
The defendant having taken the witness stand, he was subject to cross-examination, within reasonable limits, upon matters affecting his credibility as a witness (The State v. Roselli, 109 Kan. 33, 198 Pac. 195), and his testimony was subject to rebuttal as that of any witness.
Tested by the rules of law above stated, this evidence of Parker relating to these same three persons being out in MeReynolds’ taxicab but two days before the offenses charged, at which time they committed a holdup or robbery and divided the money, would all have been competent in this case had it been offered in chief to the full extent that the county attorney claimed it was competent when offered in rebuttal. The proper place, however, to offer it was in .chief, if it were intended to be used as far as here stated.-
While the prosecution should offer in chief evidence which properly makes up its case against the defendant, it does not necessarily follow that it constitutes reversible error to offer in rebuttal evidence which should have been offered in chief (The State v. Abrams, 115 Kan. 520, 223 Pac. 301), the test being whether offering the evidence in rebuttal instead of in chief operates to the substantial prejudice of the defendant and prevents him from having a fair trial, and this can be determined ordinarily only by considering the facts pertaining to the specific case being considered.
But in this case the court did not permit this full evidence to go to the jury, but limited it to the sole question of the acquaintance between the defendant and the witness, and so instructed the jury at the time. As so limited it was proper rebuttal, for the defendant had testified that he did not know Parker. In rebutting that evidence it was proper for the state to show by Parker the extent of the acquaintance, the length of time they had known each other, how intimately they had known each other, and, generally speaking, the nature of transactions they had had together, and the court was careful in his instruction to the jury given at the time the’question was raised that the testimony could not be used for any other purpose.
But appellant argues that the very asking of the questions by the county attorney, and his insisting that the evidence was admissible to show that defendant participated with Parker and Clay in a highway robbery on June 5, tended to prejudice the defendant before the jury and prevent him from having a fair trial. But the questions of the county attorney on this matter were not asked with the sanction of the court. The court promptly ruled against the contention of the county attorney, and promptly instructed the jury the purpose and only purpose for which the testimony could be considered, which presents a different situation from those cases in which improper questions were propounded with the sanction of the court. Then, as we have seen, this evidence would have been competent even to the full extent the county attorney argued, had it been offered in chief, and was not testimony of a class that was not competent either in chief or in rebuttal.
The argument that the matter was entirely collateral, and that the state should have been bound by the answer of the defendant given on cross-examination, has no merit, for the reason that it is not collateral. The question of whether or not these same parties were engaged in a holdup and robbery but two days previous was not collateral to the charge that the murder in this case had been committed in an attempted holdup and robbery, but was competent evidence tending to sustain the state’s position to show motive and successive crimes of the same sort.
Appellant’s objection that it was not proper rebuttal is without force, for, to the extent that the court permitted the evidence, it was proper rebuttal, and to the extent that it was not proper rebuttal the court excluded it. Hence, from either view that may be taken of it, there was no error in the court’s ruling.
Since this is the only error complained of, the judgment of the court below is affirmed.
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The opinion of the court was delivered by
Mason, J.:
James A. Jones brought this action to quiet his title to a quarter section of land against Fannie C. Hammond, who will be spoken of as the defendant, although others were joined with her. The plaintiff recovered a judgment in accordance with his prayer, and the defendant appeals.
The plaintiff’s version of the transaction is this: In 1871 he borrowed $300 of his uncle, James Hammond, and to secure its repayment conveyed or caused to be conveyed to him the land referred to, one-half by a deed signed by himself, the other by a deed directly to Hammond from one who held the title for the plaintiff’s -benefit. The debt has never been paid, but has long since been barred by the statute of limitation, on which account the decree quieting title was asked.
The defendant, who claims under a conveyance from James Hammond, made to her in trust for the plaintiff’s children, urges that equity will not give relief to a debtor merely because the remedy for the enforcement of the debt has been lost by lapse of time. This contention is not maintainable, although it would doubtless be sound but for this statute, which was enacted in 1911, and to which the courts have given effect in a number of instances:
“When any mortgage on real estate has been in default for more than fifteen years, or the lien thereof has ceased to exist, or when action to enforce such mortgage is barred by the statute of limitations, the owner of the land may maintain an action to quiet his title and have the cloud removed.” (R. S. 60-1802.)
The defendant also asserts that the delay in bringing the action has been such as to create a bar through laches. Inasmuch as the statute authorizing it is but 14 years old, the delay has not been extreme. Moreover, the action is in effect one to remove a cloud from the title to land of which the plaintiff is in possession. In such case laches is ordinarily not available as a defense, at least where no serious inequities result, such as injury to the intervening interests of third parties. In the situation here presented delay can hardly be regarded as fatal to the plaintiff’s action on the theory of the loss of evidence through the death of witnesses, for the action is founded on the presumption of payment arising from the inaction of the creditor. (See cases cited in Harris v. Defenbaugh, 82 Kan. 765, 769, 109 Pac. 681; also 5 R. C. L. 668.) The existence of the cloud is a continuing invasion of the plaintiff’s rights, and relief to one in possession is not barred by the lapse of time. (Cooper v. Rhea, 82 Kan. 109, 107 Pac. 799; 5 R. C. L. 666, 667.)
It was shown that the defendant had paid $202.75 as taxes on the land in controversy, and the plaintiff had repaid her $140 of it. Judgment was rendered against the plaintiff for $122 on this account. The defendant suggests that the repayment in part of the taxes paid by her had the effect of a part payment on the sum borrowed and should be- presumed to have been made within the period of limitation and therefore to have rendered the original debt enforceable. The obligation of the plaintiff to refund the taxes paid grew out of the relation of mortgagor and mortgagee, not out of any express agreement. It was a separate matter from the promise to pay the sum borrowed. The tax receipts were introduced in evidence and must have shown the dates of payment. Interest was allowed at 6 per cent and the amount of the judgment indicates that a period of some 16 years had run. Moreover the lapse of time since the $300 was borrowed was great enough to create a presumption of its actual payment. (Courtney v. Staudenmayer, 56 Kan. 392, 43 Pac. 758.) The plaintiff himself, however, testified he had made no payment to James Hammond.
With respect to other suggestions of the defendant we think it sufficient to say: Where a debt secured by a mortgage in form of a deed is barred by the statute of limitation the instrument is not thereby converted into an actual conveyance, but the lien itself is lost. The circumstance that the deed to a part of the land in controversy was made directly by the original owner to James Hammond, instead of the original owner conveying to the plaintiff and the plaintiff to Hammond, does not alter the rights of the parties. While it requires clear evidence to prove that an instrument in the form of a deed was in.fact given to secure a debt, the trial court is the judge of whether that standard has been met. The rule that the continued possession of premises by a grantor is not adverse to the grantee is not material here because it has been found upon sufficient evidence that the instrument was in effect a mortgage and the statute of limitation in point is that which bars the debt.
The judgment is affirmed.
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The opinion of the court was delivered by
Allegrucci, J.:
This is the second time this case has been before this court. In State v. Walker, 252 Kan. 117, 843 P.2d 203 (1992), this court affirmed the district court’s order authorizing the State to prosecute Walker as an adult and affirmed his jury convictions of two counts of aggravated kidnapping, two counts of aggravated assault, and one count each of aggravated criminal sodomy, aggravated arson, and aggravated burglary. Walker’s sentence of life imprisonment was suspended pursuant to his post-appeal motion to modify sentence, and he was placed on probation at the Youth Center at Topeka. The State’s motion to revoke probation for violations of the conditions of probation was granted. Walker’s motion to modify the probation revocation was denied. Walker appealed.
Walker’s convictions arose out of several incidents in which a group of young men and boys bullied and briitalized their neighbors. On July 20, 1990, they threw a Molotov cocktail through a window of an occupied apartment, setting fire to the interior. The next evening the group entered an apartment without permission, beat the occupants, threatened to kill them, and sexually assaulted a woman. ' '
After his convictions were affirmed by this court, Walker filed a motion to modify his sentence. District Court Judge Karen Humphreys, who presided at the jury trial' and imposed the original sentence of life imprisonment, granted the motion and placed Walker “on probation from the confinement portion of the sentence for a period of five (5) years.” The court ordered that he reside at the Youth Center at Topéka until the age of 21. Among the terms and conditions imposed on the probation by the district court was the following: “That the defendant shall remain within the area of the State of Kansas, and the Youth Center at Topeka (YCAT), unless permission to leave is first obtained from this Court.” The sentence was modified in March 1993.
In June 1994, the State filed in the district court a motion for revocation of Walker’s probation. The following violations of the conditions of probation were alleged:
“1. That the defendant'failed to remain within the area of the Youth Center at Topeka (Y.C.A.T.) and did so without the permission of the Court;
“2. That the defendant failed to abide by all rules and regulations of Y.C.A.T.”
The following facts were stipulated by the parties: On May 1,1994, Walker traveled from Topeka to Wichita with another YCAT resident and two females, aged 14 and 15. Walker was authorized to be off the YCAT campus from 8 a.m. to 8 p.m. that day to participate in a mentorship program, but he was not authorized to travel to Wichita. Walker returned to YCAT by 8 p.m. on May 1, 1994. “The. trip to Wichita was taken in a vehicle rented by an off-duty YCAT staff person.”
The parties also stipulated that Walker left the YCAT campus without written authorization on June 4, 1994. Walker was not permitted to leave the campus without authorization. Testimony at the hearing established that after his request to leave the campus was denied by the director of Walker’s cottage, he convinced an inexperienced YCAT employee to let him leave without written authorization.
The second district court judge to become involved in this case, Paul W. Clark, determined that Walker violated the conditions of his probation on May 1 and June 4, 1994. Furthermore, the judge concluded that Walker “freely, voluntarily violated his probation” on those two occasions. Thus, he concluded: “To me the best thing to do for everybody concerned, based upon the evidence submitted by stipulation, based upon the evidence presented in testimony, is to revoke the probation and impose the sentence originally imposed by Judge Humphreys.” The journal entry revoking Walker’s probation was signed by Judge Clark and filed on October 11,1994.
On November 4, 1994, Walker filed a motion seeking modification of the revocation of probation. On January 3,1995, an order denying the motion to modify was filed. It was signed by Judge David W. Kennedy. On January 18, 1995, Walker filed his notice of appeal.
We first consider if we have jurisdiction to consider the issue raised by Walker. The State contends that this appeal should be dismissed for lack of jurisdiction to consider the issue briefed by Walker because it differs from the ruling designated in the notice of appeal. Walker’s statement of the issue briefed on appeal may be paraphrased as follows: District Judge Clark violated due process guarantees and abused his discretion by revoking Walker’s probation for “minor and technical violations” of the conditions imposed on him. Walker’s notice of appeal states that he is “appealing the Order of District Court Judge David Kennedy overruling defendant’s motion to modify the order of revocation of defendant’s probation.”
The State correctly notes that the district court ruling that is the subject of the issue briefed by the defendant does not share precise identity with the ruling designated in the notice of appeal. The question for the court is whether the discrepancy between the district court’s revoking probation and refusing to modify the revocation deprives this court of jurisdiction.
For the proposition that the court lacks jurisdiction to consider a ruling that is not identified in the notice of appeal, the State cites State v. G.W.A., 258 Kan. 703, 706-07, 906 P.2d 657 (1995). In that case, we held: “ It is a fundamental proposition of Kansas appellate procedure that an appellate court obtains jurisdiction over the rulings identified in the notice of appeal.’ Hess v. St. Francis Regional Med. Center, 254 Kan. 715, 718, 869 P.2d 598 (1994).” 258 Kan. at 706. There, the State’s notice of appeal designated the district court’s judgment of acquittal as the ruling appealed from. Although the State is not permitted to appeal from a judgment of acquittal, the State may appeal on a question reserved. This court stated: “The notice of appeal was limited and specific and cannot be read to include an appeal on a question reserved. Because the only ruling referred to in the notice of appeal is one which is not subject to appellate review, this court lacks jurisdiction.” 258 Kan. at 707. Thus, the appeal was dismissed for lack of jurisdiction.
G.W.A. involved an appeal by the prosecution in a criminal matter. Such appeals are tightly restricted by statute. In contrast, appeals by defendants in criminal matters are much less restricted. See K.S.A. 22-3602(a). Unlike the judgment of acquittal designated by the State as the ruling appealed from in G.W.A, the ruling referred to in Walker’s notice of appeal is not precluded from appellate review. K.S.A. 21-4603(d)(l) provides that the revocation of probation may be modified, and K.S.A. 22-3602(a) provides that “an appeal . . . may be taken by the defendant as a matter of right from any judgment against the defendant in the district court.” In addition to providing a broader scope of review for defendants than for the State, 22-3602(a) may be read as diminishing any requirement for specificity in a defendant’s notice of appeal. After providing that a defendant may take an appeal as a matter of right from any adverse judgment, the statute continues: “[A]nd upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed.”
Here, it is quite apparent from Walker’s designation in the notice of appeal of tire order denying his motion to modify revocation of probation that the subject of his appeal is revocation of his probation. The same cannot be said.for the. State’s notice of appeal in G.W.A. There, the court stated: “[I]f [we] did independent research and read the record, we could conclude that the State was appealing a question reserved. We think the State must give more guidance in its notice of appeal than that given in this case.” 258 Kan. at 707.
The State also relies on State v. Grant, 19 Kan. App. 2d 686, 875 P.2d 986, rev. denied 255 Kan. 1005 (1994). After being sentenced to 1 to 5 years’ imprisonment for one count of forgery, Grant filed a notice of appeal, which stated that he appealed from “denial of his Motion to Modify Sentence.” 19 Kan. App.. 2d at 687. Later, when the case had been assigned to the Appellate Defender’s office, an amended notice of appeal was filed out of time. It purported to include imposition of sentence in the review. In response to the Court of Appeals’ order to show cause, Grant argued that the amended notice related back, that trial counsel was ineffective, and that “under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), a defendant is entitled to pursue an out-of-time appeal where his trial counsel fails to timely perfect an appeal.” 19 Kan. App. 2d at 687. The arguments weré to no avail. Applying the rule that an appellant is bound by the issues raised in the notice of appeal, the Court of Appeals dismissed “[t]he portion of Grant’s appeal encompassed by the amended notice of appeal.” 19 Kan. App. 2d at 692-93. This court denied review.
It is apparent, however, from the balance of the Court of Appeals’ opinion that the merits of issues other than the denial of the motion to modify were considered and rejected. See 19 Kan. App. 2d at 695-701. Here, Walker was clearly asserting error in the district court’s decision to revoke his probation. That was true whether he designated it a motion to modify or directly appealed from the order of revocation. As a practical matter, the result would be the same, i.e., setting aside the revocation and allowing Walker to remain on probation. We do not find Grant to be dispositive of this appeal. We are not persuaded by the State’s argument, and find that the notice of appeal was sufficient to include the trial court’s revocation of Walker’s probation. We, therefore, have jurisdiction to consider the district court’s revocation of Walker’s probation.
A probationer may not have his or her probation revoked unless it is made to appear that the probátioner has failed to comply with the conditions of probation. Swope v. Musser, 223 Kan. 133, Syl. ¶ 2, 573 P.2d 587 (1977). Once there has been evidence of violation of the conditions on which probation was granted, revocation is in the sound discretion of the district court. 223 Kan. at 136. Thus, this court’s task is to determine whether the district court’s action was “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.” State v. Van Winkle, 256 Kan. 890, 897, 889 P.2d 749 (1995).
Walker does not contend that the conditions of his probation were not violated. He does contend that revocation of his probation is a disproportionately harsh punishment for his violations. He argues that he “substantially complied with the probation order” and that his culpability for the violations should be mitigated due to the complicity of the YCAT staff.
Walker relies on Black v. Romano, 471 U.S. 606, 85 L. Ed. 2d 636, 105 S. Ct. 2254 (1985), for the principle that the conditional liberty interest created by probation cannot be taken away without consideration of the circumstances surrounding a violation of the conditions of probation. There was a lengthy hearing in the present case at which two witnesses testified for the State, four witnesses testified for the defense, and counsel made opening statements and closing arguments. Walker does not complain that the procedure was wanting. Clearly, the court considered the circumstances surrounding his violations. Walker’s position is that sufficient weight was not given the mitigating circumstances surrounding his violations and, thus, the trial court violated substantive due process requirements in revoking his probation.
We do not find support for that position in Black v. Romano. There, the Supreme Court stated: “The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation.” 471 U.S. at 610. The minimum procedural safeguards required by due process are outlined in Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973), and Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). Neither decision, however “purports to restrict the substantive grounds for revoking probation.” Black, 471 U.S. at 611. The Court noted in Black that Bearden v. Georgia, 461 U.S. 660, 76 L. Ed. 2d 221, 103 S. Ct. 2064 (1983), “recognized substantive limits on the automatic revocation of probation where an indigent defendant is unable to pay a fine or restitution.” (Emphasis added.) 471 U.S. at 611. The Court-further elaborated that
“Bearden acknowledged this Court’s sensitivity to the treatment of indigents in our criminal justice system and, after considering the penological interests of the State, concluded that ‘depriv[ing] the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine’ would be ‘contrary to the fundamental fairness required by the Fourteenth Amendment.’ Id., at 673 ... .
“We need not decide today whether concerns for fundamental fairness would preclude the automatic revocation of probation in circumstances other than those involved in Bearden." 471 U.S. at 614-15.
Where, as here, there is discretion to continue or revoke probation, the “probationer is entitled to an opportunity to show not only that he did not violate the conditions, but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition.” 471 U.S. at 612. A probationer who has been afforded these opportunities, as Walker was, is not entitled to more as a matter of substantive due process.. 471 U.S. at 613-15.
Walker’s contention that government complicity in the violations should excuse his conduct is, likewise, not persuasive. From his perspective, it appears that he is being punished for doing what YCAT staff members made it possible for him to do. In the first incident, his trip to Wichita was made possible by a staff member’s renting a car and making it available to him for the trip. In the second incident, his unauthorized absence from campus was made possible by a staff member’s permitting him to leave, and he spent the time at a staff member’s house. Nonetheless, Walker freely and willingly went to Wichita and left the campus. Thus, his culpability is not diminished by the active participation of others. With respect to the other participants being those in charge of his custody, Walker has offered no authority for that circumstance requiring a different rule. If Walker were an adult inmate in the custody of the Department of Corrections, prison guards’ participation would have no mitigating effect on Walker’s conduct. Although there may be circumstances in which an adolescent’s reliance on the judgment of adult staff members might excuse his actions, neither of the incidents in which Walker violated the conditions of his probation fits in that category. He could not have mistaken using his day pass to drive to Wichita with a friend and two young females for participating in a mentorship program, which is the activity for which the pass was issued. Thus, the staff member’s providing a means of transportation should not exculpate Walker. In the other incident, he manipulated an inexperienced staff member into assisting him' in leaving campus for the evening. There is no contention that Walker was not fully aware that his conduct was in violation of the rules. We do not find that the district court abused its discretion in revoking Walker’s probation.
Affirmed.
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The opinion of the court was delivered by
Larson, J.:
In this first impression case, we are presented with the question of whether a person’s telephonic connections that prompt a computer owner to change its security systems constitute felony computer crime in violation of K.S.A. 21-3755(b).
The charges against Anthony A. Allen arose from several telephonic connections he made with Southwestern Bell Telephone Company’s computers in early 1995. After preliminary hearing, the trial court dismissed the complaint, finding no probable cause existed to believe Allen had committed any crime.
The State has appealed pursuant to K.S.A. 22-3602(b)(l). We affirm the trial court.
Because the result in this case must be limited to and driven by the facts presented at the preliminary hearing, we will summarize the evidence there presented in considerable detail.
Allen admitted to Detective Kent Willnauer that he had used his computer, equipped with a modem, to call various Southwestern Bell computer modems. The telephone numbers for the modems were obtained by random dialing. If one of Allen’s calls were completed, his computer determined if it had been answered by voice or another computer. These were curiosity calls of short duration.
The State presented no evidence which showed that Allen ever had entered any Southwestern Bell computer system. Detective Willnauer was unable to state that Allen had altered any programs, added anything to the system, used it to perform any functions, or interfered with its operation. Willnauer specifically stated he had no evidence that the Southwestern Bell computer system had been damaged.
Ronald W. Knisley, Southwestern Bell’s Regional Security Director, testified Allen had called two different types of Southwestern Bell computer equipment — SLC-96 system environmental controls and SMS-800 database systems.
The telephone numbers for the SLC-96 systems were thought to be known only to Southwestern Bell employees or agents on a need-to-know basis. Access to the SLC-96 systems required knowledge of a password. If one connected to the system it displayed “KEYWORD?” without any identification or warning. No evidence existed that Allen attempted to respond to the prompt.
Testimony confirmed Allen also called and connected 28 times with the SMS-800 systems at several different modem numbers. Each call but two was under 1 minute. Upon connection with this system, a person would see a log on request and a “banner.” The banner identifies the system that has answered the incoming call and displays that it is Southwestern Bell property and that access is restricted. Entry into the system itself then requires both a user ID and a password which must agree with each other. No evidence indicated Allen went beyond this banner or even attempted to enter a user ID or password.
Knisley testified that if entry into an SMS-800 system were accomplished and proper commands were given, a PBX system could be located which would allow unlimited and nonchargeable long distance telephone calls. There was no evidence this occurred, nor was it shown that Allen had damaged, modified, destroyed, or copied any data.
James E. Robinson, Function Manager responsible for computer security, testified one call to an SMS-800 system lasted 6 minutes and 35 seconds. Although the system should have retained information about this call, it did not, leading to speculation the record-keeping system had been overridden. Robinson speculated Allen had gained entry into the system but admitted he had no evidence that Allen’s computer had done anything more than sit idle for a few minutes after calling a Southwestern Bell modem number.
Robinson testified that Southwestern Bell was unable to document any damage to its computer equipment or software as a result of Allen’s activities. However, as a result of its investigation, Southwestern Bell decided that prudence required it to upgrade its password security system to.a more secure “token card” process. It was the cost of this investigation and upgrade that the State alleges comprises the damage caused by Allen’s actions. Total investigative costs were estimated at $4,140. The cost of developing deterrents was estimated to be $1,656, The cost to distribute secure ID cards to employees totalled $18,000. Thus, the total estimated damage was $23,796.
In closing arguments, the State admitted Allen did not get into the computer system, nor did he modify, alter, destroy, copy, disclose, or take possession of anything. See K.S.A. 21-3755(b)(l). Instead, the State argued Allen’s conduct in acquiring the unlisted numbers and calling them constituted an “approach” to the systems, within the meaning of K.S.A. 21-3755(a)(l), which questioned the integrity of the systems and resulted in the altered or added security precautions.
In its oral ruling, the trial court noted K.S.A. 21-3755 was unclear. The court then held the mere fact Allen made telephone calls, a legal activity, which resulted in the connection of two modems, was insufficient to prove he had “gained access” to Southwestern Bell’s computer systems as the K.S.A. 21-3755(b)(l) charge required. In addition, the court held Southwestern Bell’s investigative expenses and voluntary security upgrade costs did not constitute damage to the computer systems or other property as defined in the statute.
The legal standard to be applied in a preliminary hearing is clear. If it appears from the evidence presented that a crime has been committed and there is probable cause to believe the defendant committed it, K.S.A. 22-2902(3) requires that the defendant be bound over for trial. State v. Martinez, 255 Kan. 464, 466, 874 P.2d 617 (1994). If there is not sufficient evidence, the defendant must be discharged. State v. Engle, 237 Kan. 349, 350, 699 P.2d 47 (1985); K.S.A. 22-2902(3). From the evidence presented, the trial court must draw the inferences favorable to the prosecution, and the evidence need only establish probable cause. State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 (1983). “Probable cause at a preliminary hearing signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt.” State v. Puckett, 240 Kan. 393, Syl. ¶ 1, 729 P.2d 458 (1986).
Allen was charged under K.S.A. 21-3755, which in applicable part provides:
“(a) As used in this section, the following words and phrases shall have the meanings respectively ascribed thereto:
“(1) ‘Access’ means to approach, instruct, communicate with, store data' in, retrieve data from, or otherwise make use of any resources of a computer, computer system or computer network.
“(2) ‘Computer’ means an electronic device which performs work using programmed instruction and which has one or more of the capabilities of storage, logic, arithmetic or communication and includes all input, output, processing, storage, software or communication facilities which are connected or related to such a device in a system or network.
“(3) ‘Computer network’ means the interconnection of communication lines, including microwave or other means of electronic communication, with a computer through remote terminals, or a complex consisting of two or more interconnected computers.
“(6) ‘Computer system’ means a set of related computer equipment or devices and computer software which may be connected or unconnected.
“(8) ‘Property’ includes, but is not limited to, financial instruments, information, electronically produced or stored data, supporting documentation and computer software in either machine or human readable form.
“(b) Computer crime is:
“(1) Intentionally and without authorization gaining or attempting to gain access to and damaging, modifying, altering, destroying, copying, disclosing or taking possession of a computer, computer system, computer network or any other property;
“(c) . . .
“(2) Computer crime which causes a loss of the value of at least $500 but less than $25,000 is a severity level 9, nonperson felony.
“(e) Criminal computer access is intentionally, fraudulently and without authorization gaining or attempting to gain access to any computer, computer system, computer network or to any computer software, program, documentation, data or property contained in any computer, computer system or computer network. Criminal computer access is a class A nonperson misdemeanor.”
Allen was charged with a violation of K.S.A. 21-3755(b)(l), with the second amended complaint alleging that he
“did then and there intentionally and without authorization gain access and damage a computer, computer system, computer network or other computer property which caused a loss of the value of at least $500.00 but less than $25,000.00, a severity level 9 non-person felony.”
Felony computer crime as it is charged in this case under K.S.A. 21-3755(b)(l) required the State to prove three distinct elements: (1) intentional and unauthorized access to a computer, computer system, computer network, or any other property (as property is defined in K.S.A. 21-3755[a][8]); (2) damage to a computer, computer system, computer network, or any other property; and (3) a loss in value as a result of such crime of at least $500 but less than $25,000. The trial court found that the State failed to show probable cause as to each of these elements.
Did the trial court err in ruling there was insufficient evidence to show Allen gained “access” to Southwestern Bell’s computers?
After finding the evidence showed Allen had done nothing more than use his computer to call unlisted telephone numbers, the trial court ruled there was insufficient evidence to show Allen had gained access to the computer systems. Although a telephone connection had been established, the evidence showed Allen had done nothing more. The trial court reasoned that unless and until Allen produced a password that permitted him to interact with the data in the computer system, he had not “gained access” as the complaint required.
The State argues the trial court’s construction of the statute ignores the fact that “access” is defined in the statute, K.S.A. 21-3755(a)(1), as “to approach, instruct, communicate with, store data in, retrieve data from, or otherwise make use of any resources of a computer, computer system or computer network.” By this def inition, the State would lead us to believe that any kind of an “approach” is criminal behavior sufficient to satisfy a charge that Allen did in fact “gain access” to a computer system.
The problem with the State’s analysis is that K.S.A. 21-3755(b)(1) does not criminalize “accessing” (and, thus, “approaching”) but rather “gaining or attempting to gain access.” If we were to read “access” in this context as the equivalent of “approach,” the statute would criminalize the behavior of “attempting to gain approach” to a computer or computer system. This phrase is lacking in any common meaning such that an ordinary person would have great difficulty discerning what conduct was prohibited, leading to an effective argument that the statute was void for vagueness. See State v. Adams, 254 Kan. 436, Syl. ¶ 1, 866 P.2d 1017 (1994).
The United States Department of Justice has commented about the use of “approach” in a definition of “access” in this context: “The use of the word ‘approach’ in the definition of ‘access,’ if taken literally, could mean that any unauthorized physical proximity to a computer could constitute a crime.” National Institute of Justice, Computer Crime: Criminal Justice Resource Manual, p. 84 (2d ed. 1989).
We read certain conduct as outside a statute’s scope rather than as proscribed by the statute if including it within the statute would render the statute unconstitutionally vague. See Flax v. Kansas Turnpike Authority, 226 Kan. 1, 9, 596 P.2d 446 (1979). Consequently, although K.S.A. 21-3755 defines “access,” the plain and ordinary meaning should apply rather than a tortured translation of the definition that is provided. See State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 168, 815 P.2d 66 (1991) (statutory words presumed used in ordinary and common meanings).
In addition, K.S.A. 21-3755 is certainly rendered ambiguous by the inclusion of the definition of “access” as a verb when its only use in the statute is as a noun. As a criminal statute, any ambiguity is to be resolved in favor of the accused. See State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993) (criminal statutes construed strictly against the State).
Webster’s defines “access” as “freedom or ability to obtain or make use of.” Webster’s New Collegiate Dictionary, p. 7 (1977). This is similar to. the construction used by the trial court to find that no evidence showed that Allen had gained access to Southwestern Bell’s computers. Until Allen proceeded beyond the initial banner and entered appropriate passwords, he could not be said to have had the ability to make use of Southwestern Bell’s computers or obtain anything. Therefore, he cannot be said to have gained access to Southwestern Bell’s computer systems as gaining access is commonly understood. The trial court did not err in determining the State had failed to present evidence showing probable cause that Allen had gained access to Southwestern Bell’s computer system.
Did the trial court err in ruling that no evidence showed Allen had damaged any computer, computer system, computer network, or any other property?
The State acknowledges it cannot meet the damage element of the crime it has charged by any means other than evidence showing Allen’s actions resulted in expenditures of money by Southwestern Bell. It is crystal clear there is absolutely no evidence Allen modified, altered, destroyed, copied, disclosed, or took possession of anything. The State’s evidence clearly shows Allen did not physically affect any piece of computer equipment or software by his telephone calls. All the State was able to show was that Southwestern Bell made an independent business judgment to upgrade its security at a cost of $23,796. The State argues this is sufficient.
The State’s argument is clearly flawed. The trial court reasoned by a fitting analogy that the State is essentially saying that a person looking at a no trespassing sign on a gate causes damage to the owner of the gate if the owner decides as a result to add a new lock. The trial court has clearly pointed to the correct analysis of this issue.
The State’s circular theory is that if someone incurs costs to investigate whether an activity is criminal, it becomes criminal because investigative costs were incurred. Although computer crime is not, for obvious reasons, a common-law crimé, it nevertheless has a common-law predicate which helps us to understand the legislature’s intent. K.S.A. 21-3755 was not designed to update criminal trespass or malicious mischief statutes to the computer age but “to address inadequacies in the present theft statute related to prosecution of computer related crimes. Specifically, present theft statutes make prosecution difficult among crimes in which the computer owner was not actually deprived of the computer or its software.” Kansas Legislature Summary of Legislation 1985, p. 80.
Theft, as defined in K.S.A. 21-3701, is not concerned with mere occupation, detention, observation, or tampering, but rather requires permanent deprivation. The intent required for theft is an “intent to deprive the owner permanently of the possession, use, or benefit of the owner’s property.” K,S.A. 21-3701(a). One may have wrongful intent, such as intent to trespass, without having the intent required for a theft. Perkins and Boyce, Criminal Law, p. 326 (3d ed. 1982). In addition, at common law, the thing of which the victim was deprived had to be something of value. Perkins & Boyce, Criminal Law, p. 296. The second element of computer crime mirrors this common-law requirement of the deprivation of something of value in a larceny action. As in a larceny action, the extent of the deprivation determines the severity level of the crime. This element of computer crime, as with other theft statutes, cannot be satisfied where there is no deprivation as in this case.
The State argues that investigative costs qualify as damages under the statute because investigative costs may be recovered from the perpetrator of computer crime as restitution. See State v. Lindsly, 106 Or. App. 459, 808 P.2d 727 (1991). In our case, the issue is whether Allen’s conduct is rendered criminal because it was investigated, not whether restitution for conduct already determined to be criminal includes investigative costs. Lindsly has no application to the present case.
The degree of a theft crime is established by the value of the stolen property. See State v. Wilson & Wentworth, 221 Kan. 359, 363, 559 P.2d 374 (1977). Restitution, in contrast, can include not only the fair market value of the property lost, but other costs in connection with the theft as well. See State v. Hinckley, 13 Kan. App. 2d 417, 419, 777 P.2d 857 (1989). The amount of restitution can be greater than the damages used to classify the crime. It requires only a causal connection between the crime proved and the loss on which restitution is based. State v. Wells, 18 Kan. App. 2d 735, 737, 861 P.2d 828 (1993). We will not utilize the State’s “restitution” theory to determine if there is probable cause to determine that the damage elements of a crime have been shown.
Southwestern Bell’s computer system was not “damaged” in the sense the statute requires. Southwestern Bell was not deprived of property in the manner required to support a criminal charge. The fact an independent business judgment that Southwestern Bell’s computer systems might be accessible was made after Allen’s conduct was discovered does not support the second and third elements of the crime charged. The trial court correctly determined the State failed to meet its probable cause burden on these issues as well.
Affirmed.
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
This is an interlocutory appeal by defendants from the district court’s denial of their motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. The single issue in this case is whether a workers compensation claimant may bring a cause of action under K.S.A. 44-5,121. The district court certified that an immediate appeal would materially advance the litigation, pursuant to K.S.A. 60-2102(b). The Court of Appeals affirmed the district court’s denial of the motions. Elliott v. Dillon Companies, 21 Kan. App. 2d 908, 908 P.2d 1345 (1996). Appellants’ petition for review was granted by this court on March 14, 1996.
We have reviewed the briefs, the arguments, and the record in this case, and we conclude the Court of Appeals was correct. We adopt the opinion of the Court of Appeals and affirm both the Court of Appeals and the district court.
Abbott, J., not participating.
Robert H. Miller, C.J. Retired, assigned.
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The opinion of the court was delivered by
Lockett, J.:
Defendant was convicted of two counts of kidnapping and one count each of aggravated robbery, attempted aggravated robbery, and aggravated batteiy against a law enforcement officer. He was sentenced to a controlling term of 20 years to life. In State v. Whitaker (Whitaker I), 255 Kan. 118, 872 P.2d 278 (1994), the convictions were affirmed and the sentences were va cated. Upon resentencing, the same sentences were imposed. This is Whitaker’s appeal from the resentencing. Whitaker now argues the sentencing judge failed to follow this court’s mandate when resentencing him and erred in computing the severity level of his conviction for aggravated battery against a law enforcement officer under the Kansas Sentencing Guidelines Act (KSGA). A detailed summary of the facts is not necessary to the issues on appeal.
Failure To Follow Court’s Mandate On Remand
In Whitaker’s first appeal, he complained that the trial court enhanced his sentence because he had given false testimony at trial. The Whitaker court held that the fact a defendant gave false testimony at trial is an appropriate sentencing consideration, but only if the sentencing judge finds that it negatively affects the defendant’s capacity for rehabilitation.
The district judge, when originally sentencing Whitaker, stated he had received and reviewed the presentence investigation report and he noted the sentencing factors of K.S.A. 21-4606. There was no substantial prior criminal history. The judge observed that Trotter and Carr suffered significant emotional harm. He pointed out that Officer Taylor could have been killed in the gunfire. The judge recognized that although Whitaker was not the person who fired the weapon at Officer Taylor, injury was a foreseeable consequence of Whitaker’s acts. After discussing the sentencing factors, the judge stated:
“ ‘There is one additional criteria I think is important to consider, even though it’s not one of those listed in 4606, that comes out of a Supreme Court case, State v. May, found at 227 Kansas, page 393, in which it states that the Court may take into consideration the fact that the defendant took the stand and, swearing under oath, made false statements in his testimony; and that has further been stated to be appropriate consideration by the United States Supreme Court in United States v. Grayson, . . . found at 438 U.S., page 41. I think the Court should be very cautious in taking this into consideration as a criteria and that it should be very clear that the defendant knowingly, willingly, took the stand and committed a fabrication of his testimony. I don’t know how much of Mr. Whitaker’s testimony might have been fabricated, but I know at least a portion must have been fabricated, because it was just too inconsistent with known facts, and for that reason I think that should be an appropriate consideration the Court may use in arriving at a sentencing in this case.’ ” 255 Kan. at 135-36.
The judge sentenced Whitaker to a controlling sentence of 20 years to life.
In evaluating Whitaker s claim that the district judge erred in enhancing his sentence on the basis that the judge thought he gave false testimony during the trial, the Whitaker I court noted that a similar issue was raised in a Court of Appeals case, State v. Manzanares, 19 Kan. App. 2d 214, 866 P.2d 1083 (1994). We observed that in affirming Manzanares’ sentence, imposed in part because the defendant denied culpability for his actions, the Court of Appeals relied on People v. Ward, 113 Ill. 2d 516, 499 N.E.2d 422 (1986), which in turn had relied on United States v. Grayson, 438 U.S. 41, 57 L. Ed. 2d 582, 98 S. Ct. 2610 (1978).
In Grayson, the United States Supreme Court noted that a defendant’s truthfulness while testifying on his own behalf has been deemed probative of his attitudes toward society and his prospects for rehabilitation and hence relevant to sentencing. 438 U.S. at 50. It observed that defendants have a right to testify in their own behalf, but they do not have a right to testify falsely. 438 U.S. at 54. The Grayson Court did not hold that sentences could be automatically enhanced if the defendant’s testimony is deemed false. However, a sentencing judge has the authority to evaluate carefully a defendant’s testimony, determine whether that testimony contained willful and material falsehoods, and, if so, assess in light of all the other knowledge gained about the defendant the meaning of that conduct with respect to the defendant’s prospects for rehabilitation and restoration to a useful place in society. 438 U.S. at 55.
In Whitaker I, we observed that the sentencing judge’s comments showed he applied Grayson. The problem in applying Gray-son was not so much whether, and to what extent, Whitaker lied on the stand but whether the sentencing judge carefully considered whether the false testimony, in light of other knowledge available to the trial court, affected Whitaker’s capacity for rehabilitation. We stated:
“Defendants taking the stand in their own defense who clearly he under oath can have their sentences enhanced if that fact is relevant to the question of the defendants’ individual capacity for rehabilitation. The record must show, either ex pressly or by implication, that the judge who enhances a defendant’s sentence because of false testimony has found the false testimony negatively affects the defendant’s capacity for rehabilitation.” 255 Kan. at 138-39.
We also acknowledged that it is the sentencing judge alone who determines the appropriate sentence or other disposition of the case by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant’s background, the facts of the case, and the public safety. Because we were unable to determine from the sentencing transcript if the district judge carefully considered, or failed to consider, the impact Whitaker’s false testimony had on his capacity for rehabilitation, we vacated Whitaker’s sentences and remanded for resentencing, instructing the district judge to consider the impact of Whitaker’s false testimony on his capacity for rehabilitation. 255 Kan. at 139.
At the resentencing hearing Whitaker, in an effort to mitigate the possible sentence to be imposed, stressed the progress he had made in prison, including education and training, and asked that a sentence of 10 to 40 years be imposed. The State renewed its original request for a sentence of 65 years to life. After hearing argument, the judge reimposed the 20-to-life sentence. He gave a detailed explanation for imposing that sentence. The judge reiterated that Whitaker had fabricated his testimony at trial. As to how that fact negatively affected Whitaker’s capacity for rehabilitation, the trial judge stated:
“So, the first part of that test I think certainly has been met, that his testimony was willful and contained material falsehoods.
“The second part of the test is to assess in light of all the other knowledge gained about the defendant the meaning of that conduct with respect to his prospects for rehabilitation and restoration to a useful place in society; that it isn’t just a question of punishing Mr. Whitaker for fabricating the testimony; it’s a question of taking into consideration the fact that he fabricated material testimony, whether that would affect his ability to be rehabilitated in this case.”
“Regarding the issue of his prospect for rehabilitation . . . , while he is doing a number of things to try to better himself, he sometimes has a lot of underlying problems relating to his failure to accept responsibility in this case and the fact that he is . . . self centered and has this inflated opinion about himself. When a person takes the witness stand and fabricates testimony in an effort to avoid criminal responsibility, I don’t know that that should automatically mean that he’s going to be a difficult prospect for rehabilitation, but it certainly would reflect a strong possibility that when you look at that, coupled with this evaluation that has been performed by the Diagnostic Center, I think that helps to support the argument that it does affect his prospects for rehabilitation and restoration as a usffiul citizen within the community. And certainly that was not the only reason the Court imposed the sentence that the Court did initially at the sentencing hearing. I just wanted to put all the cards out on the table that was a factor that the Court was considering, not the controlling factor, maybe not even, you could argue, a substantial factor. It’s just a factor. Because I think that Mr. Whitaker deserved to know what was going through the Court’s mind, that he had willfully chosen to take the witness stand and spin a yam that he thought that the jury would believe in an effort to save his own hide. And that his continued position in failing to accept his responsibility for his actions in this case as evidenced by the Diagnostic Center evaluation and what they call only a fair acceptance or remorse in involvement in this case, certainly affects the prospect of rehabilitation for Mr. Whitaker in a negative sense.” (Emphasis added.)
The judge then stated that the issue of false testimony was only a minor factor in determining Whitaker’s original sentence. The judge explained that in the earlier sentencing he had attempted to impress upon Whitaker the responsibility placed upon a defendant who takes the witness stand and fabricates testimony. The judge reimposed a controlling sentence of 20 years to life.
In this second appeal, Whitaker declares that the sentencing judge failed to make the findings this court directed be made on remand. He asserts: “The trial court never draws any link of relevance from his opinion of the testimony to a finding that it bears on Mr. Whitaker’s capacity for rehabilitation.” This assertion is incorrect. The sentencing judge made the requisite findings as evidenced by the italicized portion of the judge’s statements previously quoted.
In Whitaker I, we noted that it is the sentencing judge alone who determines the appropriate sentence or other disposition of the case. A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court’s broad discretion and not a result of partiality, prejudice, oppression, or corrupt motive. State v. McDonald, 250 Kan. 73, Syl. ¶ 4, 824 P.2d 941 (1992). We held that defendants who testify in their own defense and clearly he under oath can have their sentences enhanced if that fact is relevant to the question of the defendants’ individual capacity for rehabilitation. The record must show, either expressly or by implication, that the judge who enhances a defendant’s sentence because of false testimony has found that the false testimony negatively affects the defendant’s capacity for rehabilitation. Whitaker I, 255 Kan. 118, Syl. ¶ 9.
A review of the record shows that the sentencing judge did not abuse his discretion in reimposing a controlling sentence of 20 years to life. Although there was evidence that Whitaker had furthered his education and training while incarcerated, the evidence available to the judge also indicated that Whitaker had failed to accept responsibility for his criminal acts. In addition to Whitaker’s refusal to accept responsibility, as expressed in the TCF report, the judge found that his false testimony during the trial adversely affected the prospects of his rehabilitation. The sentencing judge followed this court’s mandate and made the necessary findings. The record supports the judge’s enhancement of the defendant’s sentence because the false testimony negatively affected the defendant’s capacity for rehabilitation. The sentences imposed were not an abuse of discretion.
Determining the Severity Level
Whitaker also contends that the sentencing judge erred in computing the severity level of his conviction for aggravated battery against a law enforcement officer under the KSGA. K.S.A. 21-4724(f) requires that for persons who committed crimes prior to July 1, 1993, but who are sentenced after that date, the sentencing court shall impose a pre-KSGA sentence but shall also compute the appropriate KSGA sentence. Although Whitaker committed his crimes prior to the effective date of the KSGA, the resentencing occurred after the KSGA took effect. In compliance with K.S.A. 21-4724(f), the sentencing judge computed the appropriate KSGA sentence. The sentencing judge stated that the aggravated battery against a law enforcement officer conviction was a severity level 3 offense. Whitaker challenges this finding on appeal.
At the time of Whitaker’s offense, aggravated battery against a law enforcement officer was an aggravated battery “committed against a uniformed or properly identified state, county, or city, law enforcement officer while such officer is engaged in the performance of his duty.” K.S.A. 21-3415 (Ensley 1988). Aggravated battery was defined as
“the unlawful touching or application of force to the person of another with intent to injure that person or another and which either:
“(a) Inflicts great bodily harm upon him; or
“(b) Causes any disfigurement or dismemberment to or of his person; or
“(c) Is done with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, dismemberment, or death can be inflicted.” K.S.A. 21-3414 (Ensley 1988).
Whitaker was charged with aggravated battery as described in subsection (c), aggravated battery with a deadly weapon or in a manner in which great bodily harm, disfigurement, dismemberment, or death could be inflicted. At the time of Whitaker s offense, the crime was a class B felony. K.S.A. 21-3415 (Ensley 1988).
With the enactment of the KSGA, the definitions of aggravated battery against a law enforcement officer were modified and different severity levels were assigned to the various manners in which the crime could be committed. The crime is a severity level 3 crime if it is committed by “[i]ntentionally causing great bodily harm to another person or disfigurement of another person.” K.S.A. 21-3414(a)(1)(A); K.S.A. 21-3415(a)(l), (b)(1). The crime is a severity level 6 crime if it is committed by “intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted” or by “intentionally causing physical contact with another person when done in a rude, insulting, or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” K.S.A. 21-3414(a)(l)(B), (C); K.S.A. 21-3415(a)(2), (b)(2).
The question here is whether Whitaker’s offense of aggravated battery against a law enforcement officer is properly classified as a severity level 3 or 6 crime.
According to the parties, the crucial determination in classifying this crime as a severity level 3 crime is that there must have been an intent by the defendant to cause great bodily harm. Although the State could have originally charged Whitaker with aggravated battery against a law enforcement officer by the manner of inflicting great bodily harm as defined in K.S.A. 21-3414(a) (Ensley 1988), the State instead charged Whitaker with committing the crime by using a deadly weapon or in a manner in which great bodily harm could be inflicted as defined in K.S.A. 21-3414(c) (Ensley 1988). Whitaker states the element of “intentionally causing great bodily harm or disfigurement” was neither alleged in the complaint nor proven in his trial.
Whitaker argues that it is error to assign a severity level based on an element of an offense which did not exist in the statute at the time the offense was committed. As authority, Whitaker relies on State v. Houdyshell, 20 Kan. App. 2d 90, 884 P.2d 437 (1994). Houdyshell had been convicted of aggravated battery under K.S.A. 21-3414 committed prior to July 1, 1993. The Houdyshell court held it was error to assign a severity level to the convictions predicated upon an element that did not exist in the statute at the time of the offense. The defendant’s reliance on Houdyshell is misplaced as the procedure to assign a severity level set out in Houdyshell was disapproved by this court in State v. Fierro, 257 Kan. 639, 651, 895 P.2d 186 (1995).
In Fierro, 257 Kan. at 649, we noted that historically, the fundamental rule is that a person convicted of a crime is given the sentence in effect when the crime was committed. See State v. Reed, 248 Kan. 792, 795, 811 P.2d 1163 (1991). That rule is reflected in K.S.A. 21-4723 and K.S.A. 21-4724(f), which require the sentencing court to impose a sentence as provided pursuant to law as the law existed prior to July 1, 1993, for crimes committed prior to that date. Fierro, 257 Kan. at 649.
Under Fierro, 257 Kan. 639, Syl. ¶ 5, and our later decision in Farris v. McKune, 259 Kan. 181, Syl. ¶ 2, 911 P.2d 177 (1996), we decided that in applying K.S.A. 21-4724, the Department of Corrections (DOC) or the sentencing judge must convert a pre-KSGA crime to an analogous post-KSGA crime. The sentencing judge is required to compute the guidelines classification “by looking at actual conduct and by applying the actual acts committed to the comparable crime in effect after July 1,1993.” Fierro, 257 Kan. at 651. Any uncontested information may be considered to determine what the actual conduct of the offender was. Farris, 259 Kan. 181, Syl. ¶ 3. Here, even though it was unnecessary for the State to prove an intent to cause great bodily harm for Whitaker to be convicted of aggravated battery against a law enforcement officer, if the facts show such an intent Whitaker s crime may be assigned a severity level of 3 based on that intent
The same judge presided over Whitaker’s trial, sentencing, and resentencing. The judge was familiar with the facts of the case. Whitaker’s testimony at trial was that his codefendant, Neal, instructed one of the victims to drive slowly toward a dumpster and that Neal got out of the car and started shooting. Other testimony also showed that Neal directed the victim to drive next to the police officer and slow down. The official version of the incident contained in the presentence report states: “Whitaker told Detective Mervosh that Neal shot at the officer, trying to kill him by firing a big .45 caliber automatic handgun.” At the resentencing hearing, the judge noted:
“Mr. Neal should not have perceived that his own safety was in jeopardy. He just wanted to avoid detention or apprehension, feeling as though one of the victims getting away, that they were on the verge of being apprehended by a police officer, believing the only way to head that off was just to shoot the police officer. And it’s nothing but luck that the officer wasn’t killed. The bullets just didn’t happen to end up in the right place. I don’t think it was any magical shooting on the part of Mr. Neal, that he just happened to hit the officer in a non vital area. It was just a matter of luck that is what happened.”
Our criminal code does not define great bodily harm. In State v. Dubish, 234 Kan. 708, 715, 675 P.2d 877 (1984), this court stated:
“Bodily harm has been defined as ‘any touching of the victim against [the victim’s] will, with physical force, in an intentional hostile and aggravated manner.’ [Citation omitted.] The word ‘great’ distinguishes the bodily harm necessary in [the offense of aggravated battery] from slight, trivial, minor or moderate harm, and as such it does not include mere bruises, which are likely to be sustained in simple battery.”
See People v. Lopez, 222 Cal. Rptr. 83, 176 Cal. App. 3d 460 (1986) (through and through gunshot wound to thigh was great bodily injury for enhancement statute); cf. People v. Watkins, 243 Ill. App. 3d 271, 277-78, 611 N.E.2d 1121 (1993) (no great bodily harm for aggravated battery conviction where bullet only grazed victim and did not draw blood).
Whether bodily harm is great is generally a question of fact for the jury, not the trial judge. See State v. Sanders, 223 Kan. 550, 552, 575 P.2d 533 (1978); State v. Ochoa, 20 Kan. App. 2d 1014, 1020, 895 P.2d 198 (1995). Here, however, where the determination of great bodily harm is made in the context of classifying the severity level of a crime, the trial judge is required to explore that question and determine if great bodily harm occurred.
Did great bodily harm occur? The facts indicate that Neal had an intent to cause great bodily harm. The police officer received a “through and through” wound to his right arm, although a more damaging injury could have occurred had the officer been hit in a more vital area of his body or if the bullet had struck a bone. The officer missed 3 days of work as a result of his injury. The officer here suffered more than a mere bruise or scratch. The sentencing judge properly classified Whitaker’s offense as a severity level 3 crime based on the intent to cause great bodily harm.
Affirmed.
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The opinion of the court was delivered by
Davis, J.:
This is the second time this case has been before us. In State v. Rinck, 256 Kan. 848, 888 P.2d 845 (1995), after concluding that the defendant’s conviction for aggravated battery was multiplicitous with his aggravated robbeiy conviction, we reversed his aggravated battery conviction, vacated his sentences, and remanded for resentencing on the charges of aggravated robbery and aggravated burglary. This is the defendant’s appeal from the new sentences imposed. He contends (1) he was denied due process because his sentences for the same conviction upon remand were more severe than the punishment originally imposed and (2) the court erred in its application of the Habitual Criminal Act, K.S.A. 1992 Supp. 21-4504. We agree, vacate the sentences imposed, and remand again for resentencing in accord with this opinion.
The facts are not. in dispute. Briefly, the charges against the defendant arise from an incident in which the defendant and two juvenile accomplices burglarized the residence of an 82-year-old woman. They stole a TV set and Tupperware containers filled with change from the victim’s residence. During the course of the burglary, the defendant beat the victim over the head with a flashlight. The victim suffered a 2-inch gash on the top of her head which required 10 stitches.
The defendant was originally charged with and convicted of aggravated burglary (K.S.A. 1992 Supp. 21-3716), aggravated battery (K.S.A. 21-3414 [Ensley 1988]), and aggravated robbery (K.S.A. 21-3427 [Ensley 1988]). The court sentenced the defendant under the Habitual Criminal Act to 10 to 20 years for aggravated burglary and 15 years to life for aggravated robbery. The court ordered these sentences to run concurrent with each other and consecutive to other sentences previously imposed. The controlling sentence of 15 years to life was not affected by the enhancement of the sentence for aggravated burglary. Consequently, the defendant did not challenge the enhancement in his first direct appeal to this court.
Upon resentencing after remand by this court, the trial court considered and used the court’s findings in the original sentencing hearing regarding the Habitual Criminal Act. The trial court applied the sentencing factors of K.S.A. 21-4606 and imposed the enhanced sentences of 10 to 20 years for aggravated burglary and 20 years to life for aggravated robbery, to run consecutively. In effect, the court doubled the defendant’s controlling sentence from the previously imposed sentence of 15 years to life to a controlling sentence of 30 years to life.
Due Process upon Resentencing
The leading case of North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), involved two separate cases where the defendants successfully appealed their original convictions and on retrial received greater sentences than they had received originally. For the defendant Pearce, the State offered “no evidence” to justify the increased sentence and had not attempted to explain or justify the greater penalty. For the defendant Rice, the State advanced no reason for his increased sentence “beyond the naked power to impose it.” 395 U.S. at 726. The Court noted that neither the Double Jeopardy Clause nor the Equal Protection Clause bar imposition of the greater sentences after the reconviction of the defendants. However, Pearce noted that the Due Process Clause of the Fourteenth Amendment to the United States Constitution prevented increased sentences actually motivated by vindictive retaliation by the trial court upon resentencing:
“Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” 395 U.S. at 725-26.
In this case, we do not have a retrial, conviction, and resentencing after a prior conviction has been set aside, but our situation is not much different. Here, the defendant appealed, and this court set aside his sentences. The matter was remanded for resentencing and, based upon the same two convictions of aggravated robbery and aggravated burglary (the charge of aggravated battery was dismissed based upon multiplicity), the defendant received a more severe sentence than the sentence originally imposed. The defendant contends that the sentences imposed must be set aside because they violated his due process rights.
In the more recent case of Wasman v. United States, 468 U.S. 559, 82 L. Ed. 2d 424, 104 S. Ct. 3217 (1984), the Court discussed Pearce and clarified its holding. Wasman involved a defendant whose conviction had been set aside. He was retried and convicted of the same offense and resentenced to a greater penalty than had been imposed in the original sentence. When the defendant had first been sentenced, he had a pending charge which had not resulted in a conviction. The trial court, therefore, did not consider the pending charge when imposing the original sentence. How ever, in the interim time between his appeal and his appearance for imposition of his second sentence, the pending charge had resulted in a conviction. When imposing the final sentence, the trial court considered this new conviction and imposed a more severe penalty. The trial court noted on the record:
“[W]hen I imposed sentence the first time, the only conviction on [petitioner’s] record in this Court’s eyes, this Court’s consideration, was failure to file income tax returns, nothing else. I did not consider then and I don’t in other cases either, pending matters because that would result in a pyramiding of sentences. At this time, he comes before me with two convictions. Last time, he came before me with one conviction.” 468 U.S. at 562.
Wasman argued that Pearce prevented the trial judge jfom considering his prior conviction because it involved conduct that occurred prior to the time of his original sentencing proceeding. The defendant relied upon the following language from Pearce:
“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” (Emphasis added.) 395 U.S. at 726.
“A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant’s ‘life, health, habits, conduct, mental and moral propensities.’ Williams v. New York, 337 U.S. 241, 245 [, 93 L. Ed. 1337, 69 S. Ct. 1079], Such information may come to the judge’s attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant’s prison record, or possibly from other sources.” (Emphasis added.) 395 U.S. at 723.
Wasman noted that Pearce is not without its ambiguities. The Wasman Court identified its own case as squarely presenting the question of the scope of information that may be relied upon by a sentencing authority to justify an increased sentence after retrial. However, Wasman found it unnecessary to resolve apparent ambiguities presented by Pearce, holding that “any language in Pearce suggesting that an intervening conviction for an offense committed prior to the original sentencing may not be considered upon sentencing after retrial, is inconsistent with the Pearce opinion as a whole.” 468 U.S. at 571.
An analysis of Wasman is instructive in resolving the question we now face. Wasman makes it clear Pearce does not in any sense forbid enhanced sentences or charges but only enhancement motivated by actual vindictiveness toward the defendant for having exercised guaranteed rights. In only two instances has the United States Supreme Court applied the “prophylactic rule” of a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence. The first casé is Pearce, discussed above. In the second case, Blackledge v. Perry, 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (1974), the defendant was charged with a misdemeanor offense of assault with a deadly weapon. He was convicted and sentenced to a term of 6 months. He appealed and under state law had a right to a trial de novo.
After Blackledge filed, his appeal, the prosecutor obtained an indictment for a felony offense of assault with a deadly weapon with intent to kill. He pleaded guilty to the felony offense and was sentenced to 5 to 7 years’ imprisonment. The Court held that the indictment for the felony offense was impermissible under the Due Process Clause because “the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case.” 417 U.S. at 27.
The Wasman Court stated:
“Although there was no affirmative evidence tendered that the prosecutor brought the felony charge in bad faith, we agreed that, because the record was devoid of any explanation for the new indictment, relief should be granted. Consistent with Pearce, however, we explicitly observed that a different disposition would have been called for had the State advanced a legitimate nonvindictive justification for the greater charge. 417 U.S. at 29, n.7 [, 40 L. Ed. 2d 628, 94 S. Ct. 2098], This acknowledgment, of course, was ho more than a reaffirmation that Pearce established a rebuttable presumption of vindictiveness, not an absolute prohibition on enhancement of sentence.” 468 U.S. at 566.
In other circumstances, the Court ha$ refused to indulge in a presumption of vindictiveness of the kind imposed in Pearce and Blackledge. In Colten v. Kentucky, 407 U.S. 104, 32 L. Ed. 2d 584, 92 S. Ct. 1953 (1972), the defendant was convicted of a misdemeanor in the inferior court. Under Kentucky’s two-tiered trial system, a defendant has the right to a trial de novo in a court of general jurisdiction. The Court held that the possibility o.f vindictiveness found to exist in Pearce was not-inherent in die Kentucky two-tiered system, and rejected Colten’s contention that upon trial de novo the tribunal was constitutionally prohibited from imposing a greater sentence than that imposed in the original trial. Similarly, in Chaffin v. Stynchcombe, 412 U.S. 17, 36 L. Ed. 2d 714, 93 S. Ct. 1977 (1973), the Court rejected the need for the prophylactic Pearce presumption because the Court perceived as “de minimis” the possibility that an increased sentence by a jüiy upbri reconviction after a new trial would be motivated by'vindictivbnéss.' Was-man notes in its ■ consideration of Chaffin th&t not only was the second jury unaware of the prior conviction but in contrast to the judge and the prosecutor in Péarce and Blaekledge; it was unlikely that a jury would consider itself to have á "“personal stake” in'"a prior conviction or a motivation to engage in- self-vindic'atión. 468 U.S. at 567. ■ ■ ■ ■-■ -'" -• -N ••
In Bordenkircher v. Hayes, 434 U.S. 357, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978), the Court held that dub process is.not implicated when a prosecutor threatens to seek conviction on a greater offense if the defendant does not plead guilty, and the prosecutor in fact does so when the defendant proceeds to trial. Moreover, in United State v. Goodwin, 457 U.S. 368, 374, 73 L. Ed. 2d 74, 102 S. Ct. 2485 (1982), the Court held that a presumption of vindictiveness is unwarranted where the prosecutor",adds.a felony charge before trial to a defendant’s misdemeanor charge after the-defendant demands a jury trial on the misdemeanor charge. Goodwin concluded that it was highly unlikely that a prosecutor Would respond to a defendant’s pretrial demand for" a jury trial by bringing charges riot in the public interest.. "'
In all cases where the.presumption does not apply, the defendant must affirmatively prove actual vindictiveness in-order to prevail. However, where the presumption applies in cases similar to Pearce and Blackledge, the sentencing authority or the prosecutor must rebut the presumption that an increased sentence or charge resulted from vindictiveness.
Recently, this court considered a similar issue in the case of State v. Macomber, 244 Kan. 396, 769 P.2d 621, cert. denied 493 U.S. 842 (1989). Macomber was originally sentenced to a controlling term of 30 years to life. His appeal succeeded, and we reversed his convictions and remanded for a new trial. He was again convicted of the identical crimes upon retrial, and the court sentenced him to a controlling term of 38 to 100 years, a sentence more severe that his first sentence. We reviewed the pertinent cases of the United States Supreme Court dealing with this issue, including Pearce, Wasman, Chaffin, and Colten, along with Texas v. McCullough, 475 U.S. 134, 89 L. Ed. 2d 104, 106 S. Ct. 976 (1986). We acknowledged that the issue of vindictiveness in the resentencing was of critical importance. We adopted Pearce, acknowledging that Macomber turned upon the question of whether there was a presumption of vindictiveness in the defendant’s resentencing. We resolved the case based upon the fact that the resentencing occurred before a different judge than the judge imposing the first sentence:
“We hold no presumption of vindictiveness arises where the original judge does not pronounce sentence after the second conviction. There is thus no error. ‘[Wjhere the presumption does not apply, the defendant must affirmatively prove actual vindictiveness.’ Wasman v. United States, 468 U.S. at 569. Macomber has made no showing of actual vindictiveness.” 244 Kan. at 405.
Based upon the above holding, the parties in this case spend considerable time in their briefs on the question of whether the original judge imposed the sentence in this case upon resentencing. Initially, Judge Sieve was a member of a panel of three judges who considered the appropriate sentence for Rinck. The first sentence was imposed by another member of the three-judge panel. At the time, this was the sentencing system in place in Wyandotte County, but this system is no longer being used.
Judge Sieve is also the judge who imposed the second sentence upon remand. The State claims that the second sentence is not imposed by the original judge and the defendant must, therefore, prove actual vindictiveness to prevail. The defendant says the second sentence was imposed by the same judge and there is a presumption of vindictiveness which has not been overcome by evidence of record.
Judge Sieve was involved in both sentences imposed upon the defendant in this case. We have no hesitancy in concluding that the sentences were imposed by the same judge. Thus, the presumption of vindictiveness in the resentencing would apply under our holding in Macomber. However, we need to reexamine our holding in Macomber.
Our focus in Macomber on whether the original judge imposes the second sentence upon resentencing is not a critical concern. The presumption of vindictiveness is not dependent upon whether the resentencing upon remand is imposed by the same or a different judge. To the extent that Macomber holds otherwise, it must be rejected in favor of the principles set forth in this opinion.
Wasman decided that the defendant’s prior conviction, even though based upon conduct subsequent to his original sentence, may be considered by the trial court in resentencing. In doing so, Wasman states:
“We conclude that any language in Pearce suggesting that an intervening conviction for an offense committed prior to the original sentencing may not be considered upon sentencing after retrial, is inconsistent with the Pearce opinion as a whole. There is no logical support for a distinction between events’ and ‘conduct’ of the defendant occurring after the initial sentencing insofar as the kind of information that may be relied upon to show a nonvindictive motive is concerned. This is clear from Williams v. New York, 337 U.S. 241[, 93 L. Ed. 1337, 69 S. Ct. 1079] (1949), which provides that the underlying philosophy of modem sentencing is to take into account the person as well as the crime by considering ‘information concerning every aspect of a defendant’s life.’ [Citation omitted.]”
“Even without a limitation on the type of factual information that may be considered, the requirement that the sentencing authority or prosecutor detail the reasons for an increased sentence or charge enables appellate courts to ensure that a nonvindictive rationale supports the increase. A contrary conclusion would result in the needless exclusion of relevant sentencing information from the very authority in whom the sentencing power is vested.” (Emphasis added.) 468 U.S. at 571-72.
. It is significant to note that the Wasman. Court, specifically found that the trial judge •; „■ ,
“ ‘followed precisely the’procedural steps of Pearce,' affirmatively stating on the record his reason for enhancing the s'entence, basing that reason on objective information concerning 'identifiable conduct of the defendant, and making the factual data on which his action was based part of the record so that its constitutional legitimacy [may] be fully reviewed on appeal. [Citation omitted.]’ ” 468 U.S. at 563. . ’ “ ”
Applying the above principles., we conclude that the presumption of vindictiveness’applies in this casé. We must, therefore, determine whether the trial’ coiirt; in its final sentence, articulated on the record the reason for the mote severe sentence. The record of resentencing shows the defendant-requested that the judge not impose a more severe sentence than before, in that he should not be “penalized bécause he prevailed”- before the'Supreme Court.
The defendant offered testimonial evidence from his mother and his fiancee, and,from letters all pointing to his change'of attitude as a result of 3 years’' incarceration. The State offered evidence relating ’ to ’ the original pres’entence investigation report (PSI). Within 30 days’ from the Original sentence, a Topeka Correctional Facility (TCF) report' was prepared, which was not'aváilable to the original sentencing'court. However, the information contained in the TCF report was .some 3 years old and closely tied to the defendant’s attitude at" the . time of the original sentence. An addendum report was prepared and dated just prior to the imposition of the new enhanced sentence imposed in Í995, but this report contained no information concerning the defendant except as to the sentences’already imposed.
Upon resentencing, the trial court did not mention the original sentencé imposéd and did not explain its reasoning for imposing a more severe sentencé. The judge’s only reply was that1 hé had ample opportunity to review the file and would address the factors listed in K.S.A. 21-4606 because:the sentences to be imposed in this case “will be. in excess of the very minimum that could be imposed.” The trial judge then reviewed the defendant’s criminal history and the circumstances of this crime.
The court then reviewed the only evidence not available at the original sentencing: the report from the TCF prepared within 30 days from imposition of the original sentence. The court cited to the report’s indication that the defendant continued to deny involvement in the crime. The court stated the report “characterizes the defendant as anything but remorseful,” although no such description appears in the report. The court also emphasized the report’s statement that the defendant came across to the evaluator as “a smiling, egocentric, irrationalizing [sic] and uninsightful young man,” and that the defendant’s testing revealed “feelings of hostility, rebelliousness and ... amorality." The court concluded that the defendant is a danger to public safety and should be removed from society to protect the public. .
The final sentence of the court was based primarily upon information contained in the original PSI report. No new PSI report was prepared, and the addendum submitted to the court contained no updated information concerning any aspect of the defendant’s life over the past 3 years of his incarceration. The trial court did not make reference to the first, more lenient sentence imposed.
Because the court did not articulate a reason on the record for the new enhanced sentence and relied primarily upon information that was obviously considered in the imposition of the original sentence, and because, in this case, there is a presumption of vindictiveness according to Pearce and Wasman, the record contains no objective information concerning identifiable conduct of the defendant for the enhanced sentence. Under these circumstances, the defendant’s right to due process is violated, not because the sentence is enhanced, but because no evidence was introduced to rebut the presumption that actual vindictiveness was behind the increased sentence. In other words, by operation of law, the increased sentence is deemed to be motivated by vindictiveness and must be set aside.
Habitual Criminal Act
The incident giving rise to the criminal charges in this case occurred on November 6, 1992, prior to the July 1, 1993, effective date of the Kansas Sentencing Guidelines Act.
In the original case, the court held a hearing on April 19, 1993, to address whether the Habitual Criminal Act should be imposed. The trial court considered evidence of several prior convictions of the defendant. The evidence revealed two prior cases: (1) 87 CR 90A, in which the defendant was convicted of two counts of burglary and one count of felony theft; and (2) 87 CR 1520A, in which the defendant was convicted of one count of aggravated assault and one count of felony criminal damage to property.
In 87 CR 90A, the felony theft was committed on December 28, 1986, and the burglaries were committed on November 28, 1986. The defendant pleaded guilty to these charges on May 13, 1987.
In 87 CR 1520A, the aggravated assault was committed on August 17, 1987; the felony criminal damage to property was committed on August 5, 1987. The defendant pleaded guilty to and was convicted of these crimes on November 18, 1987.
The State requested that the court apply the Habitual Criminal Act in the following manner: (1) an enhanced sentence for Rinck’s aggravated robbery conviction because there was one prior Article 34 conviction for a crime against a person (aggravated assault in 87 CR 1520A), and (2) an enhanced sentence for Rinck’s aggravated burglary conviction because there were two prior Article 37 convictions for crimes against property (three offenses under 87 CR 90A counted collectively as one prior crime, and criminal damage to property in 87 CR 1520A). Over objection of the defense, the trial court imposed the Habitual Criminal Act sentence as requested.
At resentencing on May 1, 1995, the trial court considered and used the court’s findings in the original sentencing hearing regarding the Habitual Criminal Act. The trial court applied the sentencing factors of K.S.A. 21-4606, which had been lacking in the record of original sentencing (the omission causing this court to vacate the sentences and remand for resentencing). The trial court then imposed the enhanced sentences of 10 to 20 years for aggravated burglary and 20 years to life for aggravated robbery, to run consecutive to each other and to the other sentences imposed in 87 CR 90A and 87 CR 1520A.
The defendant argues the trial court, imposed an illegal sentence in that it “bifurcated” the convictions in 87 CR 1520A to enhance the sentences for the two separate convictions in this case. The court used all convictions obtained in 87 CR 90A as a single prior conviction and one of the convictions obtained in 87 CR 1520A as a second prior conviction to enhance the present sentence for aggravated burglary. The court also used another one of the convictions obtained in 87 CR, 1520A as a prior conviction to enhance the present sentence for aggravated robbeiy.
More specifically, the defendant asserts the court imposed the sentence for aggravated burglaiy first, so, 87 CR 1520A was “used up” at that point and could not lawfully have been used to enhance the sentence for aggravated robbeiy. As a result, the defendant requests that this court vacate the 20 years to life sentence for aggravated robbery and impose a sentence of. no more than 15 years to life. An additional argument, not emphasized by the defendant, would be that 87 CR 1520 was “used up” when it was used to enhance the sentence for aggravated robbery, so the other conviction in that case could not be used to enhance the sentence for aggravated burglary. This approach, however, would not benefit the defendant since it challenges the 10- to 20-year sentence, rather than the 20 years to life sentence, and would not effectively change the controlling sentence.
The defendant challenges the court’s imposition of sentence and raises an issue of statutoiy construction as to the Habitual Criminal Act. “Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
The Habitual Criminal Act as it appeared at the time the present crimes were committed provided: .
“(a) If a defendant is convicted of a felony specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated, the punishment for which is confinement in the custody of the secretary of corrections after having previously been convicted of any such felony or comparable felony under the laws of another state, the federal government or a foreign government, the trial judge may sentence the defendant as follows, upon motion of the prosecuting attorney:
“(1) 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. 21-4501 and amendments thereto, for the crime for which the defendant is convicted; and
“(2) the court may fix a maximum sentence of not less than the least nor more than twice the greatest maximum sentence provided by K.S.A. 21-4501 and amendments thereto, for the crime.
“(b) If a defendant is convicted of a felony specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated having been convicted at least twice before for any such felony offenses or comparable felony offenses under the laws of another state, the federal government or a foreign government, the trial judge shall sentence the defendant as follows', upon motion of the prosecuting attorney:
“(1) The court shall fix a minimum sentence of not less than the greatest nor more than three times the greatest minimum sentence authorized by K.S.A. 21-4501 and amendments thereto, for the crime for which the defendant is convicted; and
“(2) the court may fix a maximum sentence of not less than the least nor more than three times the greatest maximum sentence provided by K.S.A. 21-4501 and amendments thereto, for the crime.
“(c) If a defendant is convicted of a felony other than a felony specified in article 34, 35 or 36 of .chapter 21 of Kansas Statutes Annotated having been convicted at least twice before for any such felony offenses or comparable felony offenses under the laws of another state, the federal government or a foreign government, the trial judgé shall sentence the defendant as follows, upon motion of the prosecuting attorney:
“(l) The court shall fix a minimum sentence of not less than the greatest nor more than two times the greatest minimum sentence authorized by K.S.A. 21-4501 and amendments thereto, for the crime for which the defendant is convicted; and
“(2) the court may fix'a maximum sentence of not less than the least nor more than two times the greatest maximum sentence provided by K.S.A. 21-4501 and amendments thereto, for the crime.” K.S.A. 1992 Supp. 21-4504.
The defendant relies upon State v. Lohrbach, 217 Kan. 588, 538 P.2d 678 (1975), as support for his contention that “bifurcating” convictions within a prior case is illegal. Lohrbach was convicted of three felony offenses occurring during the early hours of April 11, 1973: burglary, felony theft, and felony damage to property. Based upon four prior convictions introduced by the State, and on which the trial’ court relied in passing sentence against the defendant as a three-time offender under the Habitual Criminal Act, we reversed as. to the sentence, concluding that the four previous convictions could only be used as one prior conviction. Lohrbach, in reaching this result, followed the general rule prevailing throughout the country as expressed in Annot., 24 A.L.R.2d 1262, Habitual Criminal Statutes § 9:
“The majority of the cases in which the courts have construed statutes which, in substance, provide for enhancement of the punishment of one previously convicted, hold that where there were two or more convictions on as many indictments or on two or more counts in the same indictment, only one of them may subsequently be utilized as a previous conviction within the contemplation of habitual criminal statutes.” 217 Kan. at 593.
State v. Wilson, 230 Kan. 287, 634 P.2d 1078 (1981), involving a similar issue, was heard by this court on a grant of review of a Kansas Court of Appeals’ decision in State v. Wilson, 6 Kan. App. 2d 302, 627 P.2d 1185, aff’d 230 Kan. 287, 634 P.2d 1078 (1981). We approved the Court of Appeals’ decision. In Wilson, the sentences arose out of convictions on April 29, 1980, for burglary and felony theft committed on December 10, 1979. The sentences were enhanced under the Habitual Criminal Act. The State’s evidence introduced in support of sentence enhancement established that on August 10, 1977, the defendant was convicted in Barton County District Court on a charge of felony theft committed on May 29, 1977. The evidence also established that on December 20,1977, the defendant was convicted in Ellsworth County District Court on the charge of forgery; the date of commission of that offense was not known. Under the evidence, when Wilson committed the felony offenses for which he was convicted, he had previously been convicted of two felonies. From this evidence, the trial judge tripled Wilson’s sentence.
The Court of Appeals, speaking through Judge Rees, stated:
“[In State v. Lohrbach] as disclosed by the opinion, the record on appeal and the appellate briefs, the defendant’s sentences for convictions on July 11, 1973, of three felony offenses committed April 11, 1973, were enhanced upon evidence of convictions on November 23,1965, in four cases charging a total of seven felony offenses — two committed April 3, 1965, and apparently growing out of a single act; two committed April 23, 1965, and apparently growing out of a single act; two committed October 7, 1965, and apparently growing out of a single act; and one committed October 7, 1965, but apparently not growing out of the same act as that out of which the other two offenses committed that same date arose. It was held Lohrbach was subject to sentence only as a second offender.” 6 Kan. App. 2d at 304-05.
Each of the four cases in which Lohrbach was convicted on November 23, 1965, concerned offenses growing out of separate single acts. Consonant with the statement in State v. Murray, 200 Kan. 526, 530, 437 P.2d 816 (1968), that because two offenses grow out of a single act, the actor has not become a habitual offender, the seven convictions were treated as four convictions obtained on the same date.
The essential holding in Lohrbach is that multiple convictions obtained on the same date can be used only as a single conviction for the purpose of sentence enhancement under 21-4504.217 Kan. at 593; see 6 Kan. App. 2d at 305. In Wilson, 6 Kan. App. 2d at 306, Judge Rees concluded:
“Our case law has pronounced that where there are convictions for multiple offenses growing out of a single act or transaction, or where there are multiple convictions obtained on the same date for offenses committed at different times and places, the multiple convictions can be used only as a single conviction for the purpose of sentence enhancement. Where both situations exist, as in Lohrbach, the rule is the same. The common denominator of these rules is that sentence enhancement requires conviction prior to commission of the subsequent offense, the requirement we have noted as legislatively and judicially made applicable to enhancement of sentence of a defendant as a second offender.”
We see little difference between the case we now consider and Lohrbach. In Lohrbach, we set forth the philosophy of the Habitual Criminal Act:
“The basic philosophy underlying recidivist statutes might be expressed in this fashion: where the punishment imposed against an offender for violating the law has failed to deter him from further infractions, a harsher and more severe penalty is justified, the idea being, hopefully, that the greater punishment may serve as an object lesson and cause him to accomplish his reformation, where the lesser penalty had failed in that respect.” 217 Kan. at 591.
Bifurcation of the prior felonies resulting in convictions on the same date in 87 CR 1520A violates the basic philosophy of the Habitual Criminal Act. In this case, the multiple prior convictions in 87 CR 1520A (aggravated assault and felony criminal damage to property) obtained on the same date for offenses committed at different times or places can be used only as a single conviction for the purpose of sentence enhancement. As stated in Lohrbach, 217 Kan. 588, Syl. ¶ 3: “Where two or more convictions occurring on the same day result either from two or more counts in the same information or from counts in two or more information, only one of them may be used as a former conviction to enhance punishment under the provisions of K.S.A. 21-4504(1) and (2) (Weeks 1974).”
The trial court erred when it bifurcated the two convictions in 87 CR 1520A, using one conviction to enhance the aggravated robbery conviction and the other to enhance the aggravated burglary conviction. The two prior convictions in 87 CR 1520A can be used as one previous conviction and, once used, none of the convictions on that date may be used again to enhance. Our holding is perhaps one of last impression and will not affect many cases. However, upon remand for resentencing, the court may use the prior felony convictions in 87 CR 1520A to enhance the present aggravated robbery conviction or the aggravated burglary conviction, but it cannot use both, prior convictions on a bifurcated basis to enhance both present convictions.
Vacated and remanded for resentencing in accord with this opinion.
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By the Oowrt,
Crozier, C. J.
Two questions are presented by the record in this ease : First, what will sustain an attachment in a suit by one partner against another on the ground of non-residency of the defendant ? Secondly, was this such a case ?
I. Section 199 of the Code of Civil Procedure, authorizes an attachment in any civil action for the recovery of money upon any one of nine enumerated grounds, with but a single limitation, viz : if the ground upon which the attachment is asked be the non-residency of the defendant, it must appear that the claim upon which the suit is sought to be maintained is a “ debt or demand arising upon con- • tract, judgment or decree.” Whenever it shall appear that there is due from the defendant to the plaintiff “ a claim arising upon contract,” and that the defendant is a non-resideht, the plaintiff will be entitled to an attachment no matter jjvhat may be the relations of the parties, whether partners or otherwise. The test in such case is, that the claim arises upon contract. Before an adjustment of the partnership affairs, and with a view to the enforcement of such adjustment, one partner may commence his suit against the other, and if he can show that upon a final accounting of the partnership matters, there will be due him from his copartner a particular sum of money for which he will be entitled to judgment or decree, he may have an attachment upon the establishing of any of the grounds mentioned in section 199, except that of the non-residency of the defendant. With reference to the other eight grounds it will be sufficient if the proceeding be a “ civil action for the recovery of moneybut in regard to the one mentioned, the proceeding must not only be a “ civil action,” but must be predicated upon a “ demand arising upon contract, judgment or decree.”
"When an action is brought by one partner against another to compel an accounting and payment of a balance, which it is alleged, will appear to be due the plaintiff upon such accounting, the suit is not upon a £í demand arising upon contract ” within the meaning of the section of the Code referred to. It is true the claim may arise out of a set of transactions made in pursuance of an agreement between the partners to jointly engage in such transactions ; yet the claim for the to-be-ascertained balance is not a demand arising upon the contract of partnership, but one arising out of the partnership transactions with third persons. If an accounting has been had, a balance ascertained, and a promise made to pay it, then a claim for such balance would be a demand arising upon contract— not the partnership contract, but the promise to pay made after the accounting. The promise need not be express, it may be implied. If the parties assent to the correctness of the accounting and admit the accuracy of the balance found, the law implies a promise to pay it. ^
Where suit is brought by one partner against another as for a balance found upon an accounting, it is necessary that an actual balance should have been struck or the quantities so agreed upon that nothing is left to be done but Simply the computation. It is not absolutely essential that the precise amount sued for should appear in figures upon the balance sheet. It will be sufficient if the balance can be ascertained therefrom by the ordinary process of accounts.
Upon the first question above mentioned, the court is of opinion that one partner can not maintain an attachment against the property of his copartner on the ground of the non-residency of the latter, upon a claim arising out of the partnership transactions, unless there first be an accounting and ascertainment of a balance which the defendant has promised expressly or impliedly to pay.
II. Was the case at bar such a case ? The attachment was issued for $6,889.28 for “balance found due and owing from said defendant to said plaintiffs on a settlement and statement of the accounts between said plaintiffs and said defendant on the 29th day of Dec. 1865 ; and that said balance is due from said defendant to said plaintiffs for money theretofore advanced by said plaintiffs to said defendant at his request.” Such is the language of the .affidavit. From this language alone it would be somewhat difficult to determine whether the sum claimed is charged to have arisen out of mutual transactions or was for a gross sum loaned by one to the other. But the proof makes the matter more lucid. That shows that the parties had been partners in the beef business; that the plaintiffs furnished money and services, and the defendant furnished cattle and services; that an adjustment of the accounts was attempted which the plaintiffs say was complete, and assented to by both parties, and which is denied by the defendant. The proof further shows that when the settlement was attempted, the calculations were made in ink upon a paper which was produced at the hearing, but which showed no ascertained balance; that after the defendant had departed, one of the plaintiffs, together with the amanuensis, from other calculations, which appear on the paper in pencil, arrived at the amount for which the attachment was issued. Unaided by explanation, it is utterly impossible to discover in the ink calculations the basis of the pencil calculation ; nor can the court find such basis after carefully reading the testimony of the plaintiff and amanuensis referred to, and attentively listening to the exposition of counsel. No system of arithmetic will furnish a rule by which the figures made in the presence and those made in the absence of the defendant, can be reconciled. How then could it be said that there was an accounting and the finding of a balance, which the defendant agreed to pay ?
The court is satisfied the case was not such an one as warranted the issuance of an attachment on tbe ground of the non-residency of the defendant.
The judgment of the court below will be reversed, the cause sent back with directions to the District Court to sustain the motion to discharge the attachment.
All the justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
Two objections are urged against the judgment. One is, that lihe evidence is insufficient to justify the verdict; the other is, that the damages allowed by the jury are excessive.
Of these in their order. It was said by Mr. Justice VALENTINE, speaking for the court, in Dolbe v. Norton, 22 Kas. 105, that “where a person acting in good faith, and under the advice of counsel learned in the law, mistakenly institutes a prosecution against another person who is not liable, and the prosecution fails, the prosecutor docs not thereby render himself liable to an action for malicious prosecution, or to any other action.” And plaintiff in error now insists under this principle, t.hat as all the steps taken by him were upon the advice and direction of his counsel, and as the testimony upon this point was not disputed or contradicted, the verdict ought to have been given in his favor.
Underlying the question of the advice of counsel as enunciated in Dolbe v. Norton, supra, is the further principle, that such advice, to relieve liability, must have been given upon a full and fair statement of the case. Where the' prosecutor does not state the whole, facts of his case to his counsel he is not acting in good faith, and the advice is no protection to him. Plaintiff in error testified:
“I talked with several business men about him [John Baldwin], but none of them know him except Sanford Topping, who told me that he had known Baldwin for some time; and from the conversation with him I was led to believe that Baldwin was just such a man as would keep the package if he had got it into his possession. ... I then laid all the facts I had heard from-and Topping before my brother, Wm. H. Clark, an attorney, and stated to him the fact of the loss of the package.”
Wm. H. Clark testified, among other matters:
“That he was an attorney; that he had been in practice for fourteen years in Kansas; that plaintiff in error stated to him the fact of the loss of the express package; and that he had learned about John Baldwin living at Pomona, and what J. E. Parkinson, the stage driver, and Sanford Topping had told him, as he [plaintiff in error] had testified to in this case.”
From this evidence it is clear that Wm. H. Clark was led to believe from the statements of the plaintiff in error that he had learned from Sanford Topping that Baldwin was a bad man, and that he was just such a-man as would keep a package of money, if he got it by mistake into his possession. The truth is, Sanford Topping, according to his evidence, gave to Baldwin such a good character in his conversation with plaintiff in error, before the prosecution was begun, that in view of the meager evidence against Baldwin, we might more appropriately say, in view of the scanty suspicion against him, Topping’s opinion and knowledge of Baldwin ought to have been fairly stated to counsel, to be considered by him along with the statements and opinions of the stage driver. Topping testified he had a conversation with Clark before the prosecution, and said to Clark: “ He had known John Baldwin for some time, and so far as he knew he was a straight, honest man, and was all right; that Clark asked him if Baldwin got an express package of $175, by mistake, if he thought he would return it, and he told him he thought he would.” Plaintiff in error’s belief in Baldwin’s guilt rested upon the fact that the latter lived in Franklin county at the time the fraud was practiced upon him ; that his name happened to be John Baldwin, and the statement of the stage driver that he had seen Baldwin coming to Ottawa about December 1st, and the opinion of the stage driver that he was a man of thriftless habits. The good opinion in which Baldwin was held by so prominent and respected a citizen as Sanford Topping was therefore of importance. It. would have at least overcome the opinion of the stage driver, who had less acquaintance with Baldwin than Topping; and if the opinion of the stage driver was given to counsel, the opinion of. Topping ought to have been given also. It is true that there is a conflict between Topping and Clark as to the conversation between them before the prosecution; but the jury were the judges of the credibility of the witnesses and of the facts, and we must assume that they relied upon the evidence of .Topping. It is quite likely they supposed, as Topping was not an interested party in the action, it was the safest to take his - recollection as correct. Between witnesses equally credible and having equal means of information, the evidence of a party in no way interested in the result of the action is generally the best guide for the jury, when the evidence of such witnesses conflicts. The contradiction between Topping and Clark, fully shows, if Topping is to be credited, that Topping was incorrectly reported to counsel; therefore, that plaintiff in error did not state the whole facts of his case to his counsel. The jury, upon the whole evidence, must have come to this conclusion, and if they did, the defense of advice of counsel utterly failed. If state meats to counsel are not fairly made, the advice given will be no protection to a defendant for the wrongful prosecution of a plaintiff.
The damages assessed were only $100. We cannot hold them excessive. Indeed, if the jury had returned a much larger verdict, we would not be at liberty to interfere on account merely of the assessment of damages. The plaintiff, under all the circumstances, may congratulate himself for not being mulcted in a greater sum. Even in assessing compensation for the injury sustained, the jury were authorized to estimate actual expenses, “injury to feelings, mental anguish, and tarnished honor.” (Malone v. Murphy, 2 Kas. 250.) As the evidence showed the defendant in error was falsely accused of a felony, was compelled to incur actual expenses of $20, was in jail nearly three full days, contracted a severe cold while imprisoned, and suffered ill-health in consequence, we regard one hundred dollars very reasonable.
The judgment of the district court must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action under the stock law of 1874, for killing two calves. Plaintiff obtained judgment before the justice of the peace, and the company appealed. At the trial in the district court, defendant did not appear, and plaintiff obtained judgment.
The specific error alleged is, that the plaintiff took judgment for more than by the allegations of his bill of particulars he was entitled to. This objection runs only to the amount awarded for attorney-fees, and not to that recovered for the value of the calves. The bill of particulars alleges that “twenty-five dollars is a reasonable attorney’s fee for the prosecution of this action. In the prayer for judgment, it prays for the value of the calves, for twenty-five dollars attorney-fee in the justice’s court, and “twenty dollars as a reasonable fee for trial thereof in the district court.” The judgment in the district court was for thirty dollars attorney-fees. Now, if we look simply to the prayer in the bill of particulars, there was notice of a claim for attorney-fees in excess of that finally recovered, but if we look only to the allegations in the bill, the amount recovered was in excess of all allegations. What, under such circumstances, should be the' rule of decision? Ordinarily, we think the rule is, that where full notice is given in the bill of particulars of the extent of plaintiff’s claim, defendant is chargeable with such notice, and cannot complain of the manner in which such notice is given; and this because of the fact that ordinarily controversies before a justice of the peace are conducted by the parties, and without the intervention of attorneys. Where, however, as in this class of cases, compensation for attorney-fees is claimed and awarded, the regularity and accuracy of pleadings and practice may fairly be insisted upon. If defendant is charged with the cost of the plaintiff’s attorneys, he may well insist that technical accuracy is required. He should not be compelled to pay for plaintiff’s attorney, and then permit the plaintiff to recover just as though he had no attorney. Technically, no recovery can be had for anything which the facts stated do not justify. (St. L. & S. F. Rly. Co. v. Byron, 24 Kas. 350.)
The facts alleged justify a recovery of twenty-five dollars attorney-fees; the judgment is for thirty dollars attorney-fees. The error is in giving j udgment for more than the facts alleged justify. Under these circumstances we think the decision should be that the award of attorney-fees be reduced to the amount alleged to be reasonable in the bill of particulars, to wit, twenty-five dollars, and that otherwise the judgment be affirmed.
The costs of this court will be divided. .
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by H. S. Campbell against Ira C. Fuller, to recover $225, claimed as a commission' for selling certain land for the defendant to a third person. The plaintiff claims, and testified on the trial of the case, that the defendant first authorized him by an ex press parol contract to sell the land for $6,000, and that afterward the defendant authorized him to sell the land for a less sum, by the following letters and telegraphic dispatches. The defendant claims, and testified on the trial, that he never gave to the plaintiff any authority to sell the land, except as he gave it to him by the following letters and telegraphic dispatches. Said letters and telegraphic dispatches read as follows:
Office of H. S. Campbell, Real-Estate Broker and Agent, \
Paola, Kansas, Nov. 7, 1879. j
Ira G. Fuller, Esq., Brookville, Pa.— Peak Sir: I have an offer of four thousand five hundred ($4,500) dollars cash for your 160-acre farm near town. The party is here, and will await your reply. Please answer by return mail, as I cannot hold the offer long. I am satisfied, as I have no doubt you are, that you can use the money much more profitably than as npw invested.
Yours truly, H. S. Campbell.
Brookville, Pa., 11 — 10,1879..
To II. S. Campbell, Real-Estate Agent, Paola, Miami County, Kansas: Will take five thousand clear. Answer to-day.
I. C. Fuller.
Paola, KANSAS, 11 — 11,1879.
To Ira C. Fuller, Brookville, Pa.: Forty-five hundred is all I can get. Shall I sell? Answer.
H. S. Campbell.
Brookville, Pa., 11 — 12, 1879.
To H. 8. Campbell, Paola, Miami County, Kansas: Accepted; deed mailed to Chandler; no commissions; all crops reserved. I. C. Fuller.
Paola, Kaksas, Nov. 14, 1879.
To II. 8. Campbell, Esq., Paola, Kansas — Dear Sir: We have just received a deed from Ira C. Fuller and wife, to be completed and delivered to you or the person you may designate, upon the receipt of $4,500, cash.
Yours truly, J. F. CHANDLER & Bro.
Office of H. S. Campbell, Eeal-Estate Broker and Agent, p
Paola, Kansas, Nov. 26,1879. j
Messrs. J. F. Chandler & Bro. — Gektlemen : Your postal card of the 14th inst., referring to sale of Fuller’s land, was received, and would have been answered sooner had I been able to attend to it. I told the Rev. McClung to name the person to you, so you could complete and deliver deed. When Mr. Fuller was here on several of his trips, he personally requested me to sell this farm. I have made several efforts to do so, and finally succeeded. The attempt on Ira’s part to evade the payment of my service by sending the deed to you, is so exceedingly thin that I do not think it will hold water in the courts of Kansas.
I make this explanation on your account, and not by any means for Ira’s comfort or satisfaction.
Yours truly, ' H. S. Campbell.
These letters and dispatches will probably explain themselves; but we think it proper to add that H. S. Campbell, the plaintiff", was a real-estate broker and land agent at Paola, Kansas; that the defendant, Ira C. Fuller, resided at Brook-ville, Pennsylvania, and owned the land mentioned in said letters and dispatches, which land was situated within about two miles of Paola. J. F. Chandler & Bro. were also real-estate brokers and land agents at Paola, Kansas, and they had acted as the agents for the defendant Fuller for several years. Fuller, as above indicated, executed a deed for the land to a blank grantee, and sent the deed to Chandler & Bro., who immediately notified the plaintiff, and the plaintiff authorized the Rev. J. N. McClung to designate the grantee. McClung at first designated J. B. Norton as the grantee, but afterward, James A. Hopkins desiring to purchase the land, paid Norton $200, and all parties agreed that Hopkins should be the grantee, and the deed was filled up accordingly, with his name as grantee, and Hopkins paid the sum of $4,500 to Chandler & Bro., who paid this amount to the defendant. The plaintiff, Campbell, has never received anything for his services. The judgment of the court below was in favor of the defendant, and against the plaintiff; and the plaintiff now, as plaintiff in error, claims that the court below committed errors as follows:
1: The plaintiff claims that the court below committed error in permitting the defendant, on cross-examination, to ask the witness J. N. McClung the following question, to wit: “How much did Mr. Hopkins pay to Norton for the land?” The witness answered as follows: “Mr. Hopkins paid $4,700 to Norton; or rather, paid Norton $200 for his place.”
Considering what had preceded in the direct examination of Mr. McClung, we think this question was competent on the cross-examination; but even if not, we do not think that it could have prejudiced the substantial rights , of the plaintiff. There was no pretense that the plaintiff ever received anything for his services.
2. The plaintiff also claims that the court below erred in permitting the defendant’s counsel to ask the-defendant the following question: “Has Mr. Campbell at any other time ever sold any other property for you?” This question was not answered, and of course the plaintiff’s substantial rights could not have been prejudiced. .
3. The plaintiff also claims that the court below erred in permitting the defendant to ask the witness Chandler the following question: “When land is offered for sale clear of commission at a certain price, what is the custom at Paola?” The witness answered as follows: “The custom is for the purchaser to pay the commission added to that price.” We think this was competent evidence under the circumstances of this case. It really was, that under such circumstances the vendor of the land was not to pay the commission, but that the purchaser, if any person, was. The plaintiff himself was a real-estate broker and land agent, buying and selling land on commission, at Paola, and whatever the custom was, he knew it, and in the absence of any special contract varying the custom, he would be bound by it. There is no claim that the witness Chandler .was not a competent witness to testify as to what the custom was. The only claim is, that it was not competent to show this custom by any witness or by any evidence. If no custom, however, had been shown, the rule of law, so far as the defendant’s rights are concerned, would be precisely the same as the witness testified that the custom was; and hence even if this evidence was not competent, still it could not have prejudiced the substantial rights of the plaintiff.
4. The plaintiff-also claims that the court below erred by modifying by interlineation certain instructions asked to be given to the jury by the defendant. It is not claimed that the instructions as given to the jury were not good law, or that they were not applicable to the case. The only claim is, that the court erred by modifying them by interlineation. We would think that the better - practice would be not to ■modify instructions by interlineation, but to write the modification out in.,full, leaving the instructions as originally asked ■for by the party asking them, and showing precisely what the modification was. But this is a matter that rests in many cases very largely in the discretion of the trial court. The modification may be only the change of a word; and in this very case it is not shown that the modification was anything more than the mere change of a word. Besides, in this case it was the defendant’s instructions that were modified, and not the plaintiff’s, and the defendant is not complaining. Evidently the defendant had the right to adopt the instructions as modi-; fied and given by the court as his own instructions. Gener.ally we would think that a trial court would commit error as against the party asking the instructions if it should modify them by interlineation, or otherwise, so that the modification might not readily be distinguished from the instructions as ■originally asked for. In this case, however, we think no ■material error was committed.
5. The court below gave the following, among other instructions, to the jury:
“The plaintiff brings this suit to recover for services in selling defendant’s land. Two questions arise: first, did defendant employ plaintiff as agent to sell the land? second, on what terms did defendant employ him, and on what terms of sale? In order to find for the plaintiff, you must find from the evidence that defendant employed him to sell the land, and that there was an express contract to pay plaintiff for his .services, or such a contract therefor as the law would imply from all the circumstances attending the transaction. In order to constitute such implied contract, there must have been a mutual understanding between plaintiff and defendant that plaintiff was to have a commission for sale, or a sale by the plaintiff by the knowledge and consent of defendant, without an express statement that he, the defendant, would not be liable for the services of the plaintiff.”
The plaintiff claims that the court below committed material error in giving the foregoing instruction. We, however, perceive no material error therein. Under it the plaintiff had a right to recover if he proved that the defendant expressly employed him to sell the land. He also had a right to recover under it if the circumstances of the case would imply a contract or an authority to sell the land, unless there was “an express statement that he, the defendant, would not be liable for the services of the plaintiff.” The language of the court, omitting what is immaterial to this point, is as follows: “In order to constitute such implied contract, there must have been ... a sale by the plaintiff, by the knowledge and consent of the defendant, without an express statement that he, the defendant, would not be liable for the services of the plaintiff.” We think that the plaintiff can really have no reason to complain of this instruction.
We have now considered all the rulings of the court below of which the plaintiff complains, and we do not perceive any material error. The plaintiff’s case seems to come within the scope of the principles decided in the case of Atwater v. Lockwood, 39 Conn. 45.
The judgment of the court below will be affirmed.
All the Justices concurring.
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' The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by plaintiff against the defendants to recover upon two negotiable promissory notes, and to foreclose a mortgage upon real estate giyen to secure their payment. The case was submitted to the court without a jury, and the findings of fact are substantially as follows:
On the 25th day of February, 1873, J. C. Hutcheson executed and delivered to Taylor Brandon two promissory notes, payable to Brandon or order, for the sum of $500 each — one of them payable November 1,1874, and the other November 1, 1875, with interest at the rate of seven per cent, per annum. On the 20th day of October, 1873, to secure the payment of the notes, J. C. Hutcheson, and E. J. Hutcheson, his wife, executed and delivered to Brandon a mortgage on the southeast quarter of section 12, and the east half-of the northwest quarter of section 13, in township 15, range 18, east, lying in Douglas county. The mortgage was duly recorded on the 20th day of October, 1873, in the office of the register of deeds of Douglas county. Before the maturity of either of said notes,.they were duly assigned by the indorsement thereon of the name of the payee, Taylor Brandon, and delivered to Eli Bur bans, the plaintiff in this action, who has ever since been the holder "and owner of them. The notes are fully due and unpaid, (except $65 paid October 20,1873,) other than as hereinafter alleged. On the 9th day of March, 1875, J. C. Hutcheson and wife executed and delivered to Taylor Brandon a warranty deed, (recorded August 10,1875,) conveying to Brandon a portion of the mortgaged premises, to wit, the north sixty acres of the southeast quarter of section twelve, and the west quarter of the east quarter of the northwest quarter of section thirteen, in township fifteen, range eighteen; and it was agreed between Hutcheson, mortgagor, and Brandon, mortgagee, at the time, that the conveyance of the seventy acres should stand in full payment and satisfaction of the two $500 notes and mortgage hereinbefore described as having been given by Hutcheson to Brandon. At the time of the execution of the deed to the seventy acres of land, Brandon represented to Hutcheson that he was in possession of the notes and mortgage from Hutcheson to himself, and that they were at his house, about five miles from Lawrence, and that he would destroy them or bring them to him. Hutcheson, at that time, had no- knowledge or information that Brandon had transferred the notes and mortgage to plaintiff. They went together at the same time to the office of the register of deeds for Douglas county, and procured the register to write a discharge of the mortgage on the margin of the record in words and figures as follows: u For value received, I hereby acknowledge' full payment and satisfaction of the within mortgage, and discharge' the same pf record. Witness my hand, this 9th day of March, 1875. — J. C; Hutch-eson. Attest: D. W. Littell, Register of Deeds; ” which was signed by J. C. Hutcheson, he and Brandon believing that to be the proper way to execute a discharge. Hutcheson supposed the notes and mortgage destroyed until about the com mencement o£ this action, not having seen them since October 20, 1873. At the time of the conveyance of the seventy acres on March 9,1875, by Hutcheson to Brandon, Hutcheson was in the actual possession, under a warranty deed, of the whole two hundred acres, included in the mortgage of October 20, 1873, and has continued to occupy with his family the remaining one hundred and thirty acres to the time of the trial, being the sole occupant thereof, and cultivating the same. Taylor Brandon went into possession of the seventy acres deeded to him March 9th, 1875, and continues to occupy it. At the execution of the deed from Hutcheson to Brandon, March 9, 1875, of the seventy acres, Brandon was not the owner of, nor in possession of, the notes or mortgage, or either of them, and did not and never has produced them, or either of them, though often requested and frequently promising to do so; but at that date the plaintiff, Eli Burhans, was the owner and in possession of the notes and mortgage, and had no knowledge of the agreement between Hutcheson and Brandon for the conveyance of the seventy acres in payment or satisfaction of the notes and mortgage, or of any agreement, or of any attempt to discharge the mortgage on the record. Upon the 31st day of July, 1875, Hutcheson and wife executed a mortgage upon the one hundred and thirty acres remaining to them, after deeding the seventy acres to Brandon, to the Sullivan savings institution, to secure the'payment of $1,000 and interest at twelve per cent, per annum; the mortgage was recorded on the same day. Upon the 2d day of October, 1877, Hutcheson and wife executed, as satisfaction of the mortgage to the Sullivan savings institution, a quitclaim deed to the one hundred and thirty acres, to defendant John W. ■ Farwell, and the deed was recorded on the third day of October, 1877, and Farwell paid the full value of the land in good faith, and the Sullivan savings institution acted in good faith. Brandon, upon the 4th day of October, 1875, executed a mortgage upon the seventy acres deeded to him by Hutcheson and wife to D. L. Hoadley, to secure a note of the sum of $300, and interest at 12’per cent, per annum, dated also October 4th, 1875, given for money loaned by Hoadley to Hutcheson; the mortgage was recorded on the same day; the note and mortgage were subsequently and before maturity, for value received, indorsed and delivered to Wm. B. Willard, who is now the owner and holder thereof, and there is now due on the note and mortgage, from Brandon to Wm. B. Willard, the sum of three hundred and twenty-two and dollars, and a further sum of fifty dollars as an attorney’s fee for the foreclosure of said mortgage.
Upon the foregoing findings, the trial court decided the notes set forth in the petition to be paid and the mortgage null and void; that Wm. B. Willard was entitled to the first lien on the 70 acres deeded by Hutcheson to Brandon on March 9th, 1875, and that John L. Earwell was the legal owner of the 130 acres deeded him on October 2d, 1877.
As the entry upon the book of mortgages in the office of the register of deeds-of Douglas county on March 9th, 1875, was signed by the mortgagor, instead of the mortgagee, or any party representing him, such entry was, as to third persons,' a mere written statement on the part of the mortgagor in favor of his own interest, that he had paid the mortgage of October 20th, 1873, given by him to secure the notes delivered to Brandon, but did not discharge or release of record, pursuant to the statute, such mortgage. (Comp. Laws of 1879, oh. 68, § 5.)
The principal question, therefore, in the case is, whether the conveyance of the 70 acres of land by Hutcheson to Brandon on March 9th, 1875, was a payment of the notes and a valid satisfaction of the mortgage, no actual notice having been brought home to the former of the assignment before maturity of the notes and mortgage to plaintiff. The court below seems to have held the conveyance a full payment and satisfaction of the mortgage. From- the conclusions of law stated, the court must have decided that where a negotiable note is secured by mortgage on real estate, and both are assigned by indorsement thereon before maturity to a bona fide purchaser, the mortgage is taken subject to all payments made by the mortgagor to the mortgagee at any time before actual notice to the mortgagor of such assignment. Counsel for defendants claim this to be the law, and have cited many respectable authorities in support thereof. We think the doctrine thus announced not sustained by reason or sound policy, and if adopted it would be an unfortunate obstacle to commercial transactions so common in this state as the sale and transfer of negotiable paper secured by real-estate mortgages, and that such a doctrine is not in accord with the previous decisions of this court controlling the principles of law applicable to negotiable paper secured by such mortgages. In this state, the common-law attributes of mortgages have been by statute wholly set aside, and the ancient theories concerning such mortgages demolished. The mortgage is a mere security, creating a lien upon the property, but vesting no title. The debt secured by the mortgage is the principal thing, and the mortgage the mere incident following the debt wherever it goes, and deriving its character from the instrument which evidences the debt. Here, the negotiable notes are the principal evidence of the debt, and the mortgage is merely ancillary; the mortgage follows the notes; whoever owns the notes, owns the mortgage. (Chick v. Willets, 2 Kas. 385; Swenson v. Plow Co., 14 Kas. 387.) In the late case of Carpenter v. Longan, 16 Wall. 271, Mr. Justice Swayne, speaking for the court, says:
“The note and mortgage are inseparable. The former is essential, the latter is an incident. An assignment of the note carries the mortgage with it, while the assignment of the latter alone is a nullity. . . . All the authorities agree that the debt is the principal thing, and the mortgage an accessory. Equity puts the principal and accessory upon a footing of equality, and gives to the assignee of the evidence of the debt the same right in regard to both. There is no departure from any principle of law or equity in reaching this conclusion. There is no analogy between this case and one where a chose in action standing alone is sought to be enforced. The fallacy which lies in overlooking this distinction has misled many able minds, and is the source of all the confusion that exists. The mortgage can have no separate existence. When the note is paid, the mortgage expires. It cannot survive for a moment the debt which the note represents. This dependent and incidental relation is the controlling consideration, and takes the case out of the rule applied to choses in action where no such relation of dependence exists.”
Counsel for defendants say, that conceding the correctness of the general doctrine laid down in Carpenter v. Longan, supra, yet, the adoption of §3, ch. 68, Comp. Laws of 1879» has placed a legislative restriction upon the negotiability of all mortgages executed since its adoption, and that this statute throws upon the assignee of negotiable paper secured by real-estate mortgages, the burden of personal notification to the maker of the mortgage of the change of ownership, if he would cut off future payments to the mortgagee. Our atten-' tion is called to Johnson v. Carpenter, 7 Minn. 176, and to Van Keuren v. Corkins, 66 N. Y. 77, interpreting a statute like ours. In Johnson v. Carpenter, the mortgage is treated as a chose in action standing alone. In Van Keuren v. Corkins, the suit was upon a bond and mortgage, and it does not appear that the bond was negotiable. However, Johnson v. Carpenter, and the other authorities referred to in the same direction, are not satisfactory to us, or rather, they are not in harmony with the law of mortgages in this state. Section 3 speaks of the recording of the assignment of the mortgage, and does not by its terms refer to negotiable paper, and it seems to us a strained interpretation to hold its provisions applicable, where a debt is evidenced by a negotiable note, secured by mortgage upon real estate, when such mortgage is merely ancillary thereto, and follows the note wherever it goes, deriving its character from such instrument. A better interpretation, and one clearly more in accord with the law of mortgages in this state, is, that such section has reference only to a mortgage standing alone, or one securing debts and notes of a non-negotiable character. Under this interpretation, §3 of the statute is not nugatory, but has ample room for operation. As Brandon had parted with all his interest in the notes and mortgage before accepting the conveyance from Hutcheson and wife, and had no interest therein at the time, such conveyance did not extinguish the mortgage held by plaintiff; nor was it necessary for the plaintiff to record an assignment of the mortgage to protect himself from the payment to the mortgagee. The notes and mortgage went together, and the mortgagor, having made the conveyance and payment without a surrender of the notes or the mortgage, did so at his peril.
The judgment of the district court will be reversed, and the case remanded with directions to enter judgment for plaintiff for the amount due him upon the notes, and for a foreclosure of his mortgage, in accordance with the views herein expressed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was. an action of ejectment, brought by the Atchison, Topeka & Santa Fé railroad company against William Eockwood, for the recovery of a certain piece of land. The case was tried on an agreed statement of facts, and judgment was rendered in favor of Rockwood. The railroad company now brings the case to this court, and asks for. a reversal of said judgment.
On March 3,1863, an act of congress was passed, granting lands to the state of Kansas to aid in the construction of certain railroads therein designated. (12 U. S. Stat. at Large, p. 772.) ' The land in controversy was at that time and before a part of the public lands of the' United States, and is a part of the lands intended to be granted by said act, and is situated within ten miles of the railroad of the plaintiff in error. This act grants every alternate odd-numbered section of land within ten miles on each side of the railroad. This is the extent of the grant; but to make up for any deficiency in the lands thus granted, the act also provides that, “in case it shall appear that the United States have, when the lines or routes of said road and branches are definitely fixed, sold any section, or any part thereof, granted as aforesaid, or that the right of preemption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the secretary of the interior to cause to be selected for the purposes aforesaid from the public lands of the United States,” in alternate odd-numbered sections, other lands, not further than twenty miles from the line of said road, sufficient to make up the deficiency. On February 9, 1864, the state of Kansas accepted this grant, and made the plaintiff in error the beneficiary thereof for all lands granted on the route from “Atchison via Topeka to the western line of said state, in the direction of Fort Union and Santa Fé, New Mexico, with a branch from where said road crosses the Ne-osho down said Neosho Valley,” etc. (Laws of 1864, p. 150, §3.) On March 19,1866, the plaintiff in error and the Union Pacific railway company, southern branch, (a then existing corporation, of which the Missouri, Kansas & Texas railway company is the successor,) entered into an agreement by which the plaintiff transferred to the Union Pacific railway com pany, southern branch, all its right to build a railroad down the Neosho valley, together with all its interests in and to the lands granted to it to build its branch down the Neosho valley. This agreement was approved and ratified by the proper authority.
On July 26th, 1866, an act of congress was passed, granting lands to the state of Kansas to aid in the construction of the southern branch of the Union Pacific railway from Fort Riley, Kansas, toward Fort Smith, Arkansas, down the Neosho valley to the southern line of the state. (14 U. S. Stat. at Large, p. 289.) This act grants five alternate odd-númbered sections on each side of the railroad per mile. It contains the same 'provisions, substantially, for supplying a deficiency in the lands granted, as is mentioned in. the act of 1863. It also contains this further proviso:
“Provided, That any and all lands heretofore reserved to the United States by any act of congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or other purpose whatever, be and the same are hereby reserved and excepted from the operation of this act, except so far as it may be found necessary to locate the route of said road through such reserved lands, in which case the right of way, two hundred feet in width, is hereby granted, subject to the approval of the president of the United States.”
Section 4 of the act made it the duty of the secretary of ■the interior to withdraw from the market “ the lands granted by this act,” upon the company’s filing a map of its line, designating the route of its road.
On December 3,1866, the Union Pacific railway company, southern branch, made a definite location of its line of road, opposite to the land in controversy, and on April 3, 1867, the secretary of the interior withdrew from market a large amount of land, including the land in controversy, for the benefit of said Union Pacific railway company, southern branch. Th<i land in controversy was not within ten miles ■of the definite location of the road of the Union Pacific rail way company, southern branch, but was within twenty miles of the line of such road.
On March 8, 1869, the plaintiff in error located the line of its road opposite the land in controversy; and on November 3, T869, the secretary of the interior, by a letter dated October 23, 1869, withdrew from market, in favor of the plaintiff in error, a large amount of land, including the land in controversy. This land was situated within ten miles of the plaintiff’s road.
On June 22, 1871, the defendant in error settled upon the land in controversy, as a preemptor. On May 16, 1872, the commissioner of the general land office directed the officers of the local land office to cancel the entry and 'preemption of the defendant, on the ground that the land had, before its entry, inured, under the provisions of the first-mentioned land grant, to the plaintiff in error; but through mistake, (and without knowledge of this order on the part of the defendant,) the local land officers permitted the defendant, on the 19th day of June, 1872, to complete his preemption. The plaintiff in error fully completed its line of road to the western boundary of the state on December 23, 1872. The-other road was also completed within proper time, in accordance with the provisions of the act of congress of July 26, 1866. In January, 1873, the Missouri, Kansas & Texas railway company (successor of the Union Pacific railway company, southern branch) and the plaintiff in error entered into an agreement with each other, by which it was agreed that the land in controversy, along with other lands, should be certified by the secretary of the interior to the state of Kansas for the benefit of the plaintiff in error. About this time, and on January 21,1873, the Missouri, Kansas & Texas railway company selected its lands, more than ten miles from the line of its road, to make up for deficiencies in the amounts which it received within ten miles of the line of its road. It did not then select, and never selected, the land in controversy, which land has never been selected for it by anyone else. On November 11, 1873, the secretary of the interior certified the land in controversy, along with other lands, to the state of Kansas for the benefit of the plaintiff in error, as the plaintiff in error and the Missouri, Kansas & Texas railway company had previously agreed that he should. On December 16, 1873, this land was patented by the state of Kansas to the plaintiff in error. The entry of the defendant was not in fact canceled until February 5, 1875, at which time it was canceled, as ordered by the commissioner of the general land office. In 1878 said cancellation, was set aside, and the entry of the defendant was reinstated, and a patent for the land was issued to him by the United States. The defendant has remained in the actual possession of the land from the time he first settled upon it in June, 1871, up to the present time.
Upon these facts, the court below held that the plaintiff was not entitled to recover, and rendered judgment in favor of the defendant for costs.
We think under the foregoing facts that the Missouri, Kansas & Texas railway company never obtained any interest in the land in controversy. And where we use the name “Missouri, Kansas & Texas railway company,” we shall mean to include the company, not only un(jer namej |-)u{; aiso un(ier its former name of “the Union Pacific railway company, southern branch.” The grant under which the Missouri, Kansas & Texas railway company received its lauds was more than three years subsequent to the grant under which the plaintiff in error claims the land in controversy; and this subsequent grant, by the proviso already quoted, excepted from the grant all lands which had been previously granted or reserved. Hence the Missouri, Kansas & Texas railway company, as against the plaintiff in error, could claim nothing from the grant alone, independent of all subsequent transactions; and we think no subsequent transactions have been had which could give such railway company any claim to the property in controversy, as against the plaintiff in error. It is true the Missouri, Kansas & Texas railway company definitely located its line of road first; but the land in controversy was not sit uated within ten miles of the line of its road; and hence such definite location did not have the effect to give to it any interest in the land. In order to give such company any interest in lands situated more than ten miles from the line of its road, as the land in controversy was and is, three things -at least were necessary:
1. It was necessary that the road should be definitely located. .
2. It was also necessary that there should be a deficiency in the amount of land which the railroad company received within the ten-mile limit.
3. And- it was also necessary, in order to give it any interest in any specific lands beyond the ten-mile limit, that such lands should be selected for it at the instance and under the supervision of the secretary of the interior. (See § 1 of said act of 1866, and Ryan v. Rld. Co., 99 U. S. 386.)
Now, while the company did definitely locate its road, and while there was a deficiency in the amount of land which it received within the ten-mile limit, yet the land in controversy was never selected for the Missouri, Kansas & Texas railway company; and the company never asked "that any such selection should be made, but on the contrary, it asked that such land should be certified to the state of Kansas for the benefit of the plaintiff in error. The Missouri, Kansas & Texas railway company never claimed any interest in the land in controversy, and does not now claim any such interest, and we are satisfied that it never had any interest therein.
But the main question is, has the plaintiff in error ever obtained any interest in the land in controversy? It must be admitted that it has, unless the withdrawal of the land from market by the secretary of the interior, on April 3, 1867, had the effect to prevent the plaintiff in error from acquiring any such interest. The defendant in error claims that this withdrawal had such effect. He claims that it had such effect by virtue of the words, “or that the same has been reserved by the United States for any purpose whatever,” found in the first section of the grant of 1863. This with drawal of the land in controversy, and of all other lands situated more than ten miles from the line of the road of the Missouri, Kansas & Texas railway company, was for the purpose that such company might select lands to make up any deficiency of lands received by it within the ten-mile limit.
We shall suppose that the secretary of the interior had the right at this time, and for such purpose, to withdraw lands which were more than ten miles from the line of the Missouri, Kansas & Texas railway company’s road, as well as to withdraw lands which were within ten miles of the road; and that, after such withdrawal, the Missouri, Kansas & Texas railway company had the right to select from such lands, so as to obtain a priority in right to the lands thus selected over the plaintiff in error — though this is questionable. But the Missouri, Kansas & Texas railway company never did select, nor have selected, the land in controversy j hence the company never obtained, by selection, any interest in such land, and hence this land was left as though no such withdrawal had ever taken place. It does not appear from the record, or elsewhere, that the secretary of the interior attempted to withdraw these lands so as to affect any right or interest of the plaintiff in error. That portion of the agreed statement of facts concerning this subject, which really gives us all the information we have concerning the matter, reads as follows:
“21. That on the 3d day of April, 1867, the secretary of tfie interior, in accordance with the provision of said act of congress, approved July 26, 1866, and which said act, as it appears in the statutes of the United States, is made a part of this agreement, withdrew from market, for the purpose of securing the same in order to carry out the purpose and provisions in said last-mentioned act, stated and recited and in accordance therewith, all the lands which were at that time lands belonging to the United States, and which were situated within twenty miles from the located line of said railroad of said Union Pacific railway company, southern branch, except the even-numbered sections, in the first ten miles of the said line of road.”
The withdrawal was simply intended to prevent persons who had no interest in the lands, or no interest prior to that of the Missouri, Kansas & Texas railway company, from acquiring any such interest, and not to prevent’ persons who did have some interest in the lands, L t 7 prior to that of the Missouri, Kansas & Texas railway company, (as the plaintiff in error in this case had,) from perfecting such interest. The withdrawal was strictly under the provisions of the grant of 1866, as appears from that portion of the agreed facts above quoted; and that grant, by its express terms, was to operate in subserviency and subordination to all previous grants and reservations; hence this withdrawal was itself in subserviency and in subordination to the plaintiff’s grant. It was not to take away or reserve the land in controversy, or other lands like it, from the plaintiff in error, and it did not and could not affect any interest which the plaintiff had or might obtain in and to the lands. We do not wish, however, to say (or to express any opinion upon the subject), that if the Missouri, Kansas & Texas railway company had selected this land before the plaintiff in error had definitely located its road, that the plaintiff in error would then have had the right to take the land. We only wish to say that the withdrawal did not operate to prevent the plaintiff from receiving and procuring any lands belonging to the United States, and otherwise subject to the plaintiff’s grant, which had not yet been selected by the Missouri, Kansas & Texas railway company. We think that such lands were subject to the plaintiff’s grant the same as though no such withdrawal had ever been had. It does not appear that the withdrawal was intended to affect the plaintiff’s grant. According to the decisions made by the supreme court of the United States, and followed by this court, these grants were in prcesenti, creating an immediate interest in the lands granted. (Leavenworth &c. Rld. Co. v. United States, 92 U. S. 733; Missouri &c. Rld. Co. v. K. P. Rly. Co., 97 U. S. 491; A. T. & S. F. Rld. Co. v. Bobb, 24 Kas. 673; Emslie v. Young, 24 Kas. 732; K. P. Rly. Co. v. Dunmeyer, 24 Kas. 725.)
There were other things necessary to be done, however, before the grants attached to any definite or specific piece of land, and in all these things the plaintiff in error has priority over the Missouri, Kansas & Texas railway company. The grant itself to the plaintiff' in error was anterior and prior to that of the Missouri, Kansas & Texas railway company; and the plaintiff in error, by the definite location of its road, (the land in controversy being within ten miles of its road,) caused its grant to attach to the specific land in controversy, while the Missouri, Kansas & Texas railway company never did anything to cause its grant to attach to the specific land in controversy.
Just prior to this definite location of the plaintiff’s road, the land in controversy was free from any specific appropriation under either grant or to either railroad company, but was subject to both grants. It is possible that the Missouri, Kansas & Texas railway company might at that time have •appropriated it to itself by selection, but it did not do so; and the plaintiff in error then appropriated it to itself by definitely locating its road. . As soón as the plaintiff in error definitely located its road, the title to this land and all other lands in odd-numbered sections within ten miles of the road, not held by any right paramount to that of the plaintiff, would at once vest in the plaintiff, and by relation would become its property as of the date of the act of 1863. (92 U. S. 748, 749; 97 U. S. 498.)
The defendant certainly has no right to the land in controversy. He took possession thereof after it had been twice withdrawn from market — after it had been withdrawn from preemption entry and sale; after the plaintiff had definitely located its road opposite the land, and * ¿ x after the plaintiff’s right to it had fully.acrued. We think the plaintiff is legally the owner of the land. Even if some irregularities intervened in obtaining its ownership, still we would hardly think that the defendant could complain. Where one of two parties is entitled to a piece of land, (as one of the two railroads in this case was,) even if the wrong party should get the land, a third party would hardly have the right to complain.
Before closing this opinion, we might say that in this state, as well as elsewhere, the plaintiff in ejectment must recover, if he recover at all, upon the strength of his own title; but in this state the plaintiff in ejectment is not required to have the legal title, or all the title, or a title paramount to the title of all others, in order to enable him to recover. All that is necessary in order to enable him to recover is, that he shall have some kind of estate in the property in controversy, legal or equitable, and that his title to the property shall be paramount to that of the defendant. (Simpson v. Boring, 16 Kas. 248, 251, and cases there cited; Stout v. Hyatt, 13 Kas. 232, 241; O’Brien v. Wetherell, 14 Kas. 622.) We think the plaintiff in this 'case has that kind of title.
The judgment of the court below will therefore be reversed, and cause remanded with the order that judgment be rendered for the plaintiff.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The defendants were the general agents and contractors of the St. Louis, Wichita & Western railway company, and interested in procuring the bonds of Mount Pleasant township. They succeeded in obtaining a sufficient number of the electors of the township to sign a petition to the board of county commissioners of Labette county, authorizing the board to call an election for the township to decide whether or not it would issue its bonds to the railway-company in the sum of $10,000, on the terms and conditions specified in the election proclamation. The proceedings for calling the election and issuing the bonds were had under ch. 107, Laws of 1876, and the amendments thereof. The’ citizens of the township wanted the railway built across, and a depot established on the northeast quarter of section 15, in township 33, range 19, in said township. By the conditions contained in the election proclamation, tjhe railway company might locate its road and depot across said quarter-section of land, but was not' required so to do. The election was held on May 12, 1879. Before the election took place the defendánts became convinced that the bonds would be defeated, because the road and depot were not required to be located on the quarter-section named. They therefore called a meeting of the electors of the township, at which they proposed to secure by their personal bond the location of the road and depot at the point desired. On May 9, 1879, they executed to the township their personal bond in the sum of $10,000, conditioned that the railway company should build its road from Oswego to Wichita, across and over the northeast quarter of section 15, and should locate a depot for the road on some part of said quarter-section of land. Thereafter the bonds were voted, issued, and delivered to the railway company. The road was built through the township, but not across section 15, nor was any depot located thereon. On April 20, 1880, the township brought this action against the defendants on their bond of the date of May 9, 1879, demanding therein judgment for the penalty of the bond, to wit, $10,000, with interest from October 30,1879, and costs. Afterward an answer was filed by the defendants; and a reply, containing a general denial, filed by the plaintiff. The cause came on for hearing on November 29, 1880; defendants, upon the trial, objected to the introduction of any evidence, upon the ground that the petition did not state facts sufficient to constitute a cause of action. The objection was ■sustained by the court, and the jury was directed to 'find a verdict for defendants. The plaintiff excepted, and brings the case here.
Section 3, chapter,107, Laws 'of 1876, provides that the county commissioners of the county in which the township is situated, through which the proposed railroad is to be constructed, upon the presentation of the proper petition to the chairman of the board shall convene and make an order which shall embrace the terms and conditions set forth in the petition, and fix the time for holding'the election, which shall be within sixty days from the day on which the commissioners shall be convened. Section 5 of chapter 107, as amended by §1, ch, 144, Laws of 1877, prescribes that if a majority of the qualified electors voting at such election shall vote for such subscription or loan, the board of county commissioners, for and on behalf of such township, shall order the county clerk to make the subscription or loan in the name ■of the township, and shall cause such bonds with coupons attached, as may be required by the terms of the proposition, to be issued in the name of the township, which bonds, when issued for the township, shall be signed by the chairman of the board of county commissioners, and attested by the county clerk under the seal of the county: provided no such bonds shall be issued until the railroad to which the subscription or loan is proposed to be made shall be completed and in operation through the township voting such bonds, or to such point in the township as may be specified in the proposition set forth in the petition, required in the-first section of this act. Now it is stated in the petition that the railway was completed through the township, as specified in the proposition submitted to the electors, and therefore, so far as the terms and conditions of the proposition submitted by the board of county commissioners to the electors is concerned, a full compliance was had'. It is urged, however, that the township officers had the authority to change the terms and conditions of the proposition voted upon. If they had the right to enter into a contract with the defendants to change the terms of the proposition in one respect, we think it follows they had the right to change it in others. The statute authorizes in such cases the board of commissioners of the county to act as the agent of townships in all matters pertaining to the calling of an election, subscribing stock, and issuing bonds to aid in the construction of railroads, and it is doubtful whether any officers other than the commissioners can fix or impose conditions upon which the bonds should be issued. But if there is any doubt upon this point, we are clear that the action of the plaintiff cannot be maintained upon the bond set forth in the petition; because such bond is without any valid or sufficient consideration. It is true th*at the defendants agreed in writing that the railway should be built across a particular portion of land in the township, and that a depot should be located thereon; and it is probably true that such agreement induced many of the electors of the township to vote in favor of the subscription of stock and the issue of bonds in payment therefor, but this agreement was a mere' voluntary action on the part of the' defendants, and at most their action in the premises creates only a moral obligation upon them. There is no legal liability upon their promise, and the law does not assume to enforce moral obligations alone. The performance of moral obligations is left to the good faith of the promisors. If the electors of the township had desired the railroad to be constructed over a particular point in their township, such condition ought to have been inserted in the petition presented to the board of county commissioners, and the proposition submitted to the electors to vote upon would then have-contained the condition that the railroad should be located and depot built at the point desired. We do not think the case needs extended comment, or that any lengthy argument is required in support of these views.
The judgment of the district court must be sustained.
VALENTINE, J., concurring.
Bkbwer, J., not sitting.
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought upon an accepted draft, in which a civil order of arrest was procured at the same time, upon the ground that “the said defendants have assigned and disposed of their property, or a part thereof, with intent to defraud their creditors,” upon which order the defendants were arrested, and moved the court for. a discharge therefrom, for the reasons — first, that the affidavit for the order of arrest was not sufficient in law; and second, that the grounds laid for the same were not true. The issue of fact thereby raised was tried by the court upon the evidence produced by the respective parties, all of sifch evidence being by affidavits, and is preserved in the record. The court, upon the hearing, sustained said motion, and discharged the defendants; to which finding, order and judgment of the court the plaintiffs excepted, and bring the case here for review.
If only the first ground of the motion be considered, the ruling of the district court was unquestionably correct. The only facts stated in the affidavit are, that defendants sold and disposed of their entire stock of goods for $5,000, receiving in payment $1,000 cash and two farms; that the titles and deeds to said farms were executed to the wives of said defendants ; that defendants commenced business with a cash capital of only $1,400; and that at the time of said sale they owed about $3,000.
It scarcely needs any argument to show that these facts do not prove fraud, without which no arrest for debt can be had under our constitution. (Bill of Rights, § 16.) For anything that appears in this affidavit, this sale may have been at the instance and request of the creditors, or a majority of them, •and at a full value; the wives may have been the principal ■creditors, and taken the deeds as security; the cash may have been used to discharge just debts, and the farms placed in the control of all or certain named creditors. There is nothing in the price received to cast any suspicion on the bona jides of the transaction, and nothing in the disposition of the proceeds to cast anything more than suspicion, in the absence ■of proof, that the wives were not creditors, or that the proceeds of the sale were not used to pay or secure debts. Fraud is never presumed; it must be proved. No mere suspicion is the equivalent of proof. The law neither favors nor encourages arrest and imprisonment. That remedy is the der-nier ressort, the end of the law. It is quasi criminal, and the proof of the fraud must be clear and stong. (Gillett v. Thiebold, 9 Kas. 427.)
But say counsel,- the defendants challenged the truth of the general charge in the affidavit, introduced their testimony to disprove, and we ours to sustain the charge, and that the real question now is, whether upon all the testimony the general ■charge in the original affidavit is sustained. Conceding for the purposes of this case that this proposition is correct, and still the ruling of the district court must be sustained. Not by any means that the question is as clear as that as to the sufficiency of the affidavit, for there are facts presented which tend strongly to show a fraudulent intent in the,sale. Still, ■the evidence is not so convincing as to justify a reversal of the ruling of the trial court. There is no suggestion even that the stock of goods was not sold for all that it was worth, or that the consideration was not in fact paid. The sale was-known in the community in which defendants lived before it was consummated, and was advised by parties who were consulted. There was no secresy nor haste. The defendant Wey-mouth was not a partner in the firm of Weymouth & Golden, but the partnership consisted of defendant Golden and Mrs. R. E. Weymouth, the wife of R. W. Weymouth. The fact that the partnership was composed of these members was known in the community, though as R. W. Weymouth was-in the store and assisting in conducting the business, the mistake of the plaintiffs was natural. Notice of the dissolution was duly published in the paper after the sale, and also that defendant Golden would settle the debts.- The farms were not deeded as alleged in plaintiffs’ affidavit, but one was deeded to Mrs. Golden, the wife of defendant, to secure a debt of $600 and interest due her from the firm. This farm, worth $1,600, was afterward, and at Golden’s request, conveyed to J. A. Cooper & Co., the principal creditor of the firm, and to whom the'firm owed $1,340.51, to secure that debt. The other .real estate was a homestead claim and improvements, conveyed to defendant Golden, the value of which he estimates at $3,000, and upon which he moved and now resides. These improvements Golden testifies he was offering for sale with the intention of applying the proceeds in payment of the debts. jSome of the firm debts have been paid since the sale, and a large amount of them settled by.note. Most of these facts are shown by the affidavit of defendant Golden alone, though copies of the deeds to Mrs. Golden and from her to Cooper & Co. were in evidence. On the other hand, the affidavit of plaintiffs’ attorney, made a month after defendants’ affidavits, shows that he called on.defendant Golden with plaintiffs’ claim shortly after the sale, and that in the course of the conversation defendant said that they had settled many claims with their unsecured notes, and that it would be useless for creditors to try to force a collection, for their property was so that it could not be reached on execution; also, that the firm had received $1,000 in cash on the sale, but that they did not intend to use any part of it in paying their creditors. This is about all the testimony presented on the motion. Doubtless the statements of defendant, as testified to by plaintiffs’ attorney, indicate a fraudulent intent in the sale, but the conduct of the defendant as shown by his own testimony points to good faith. That the principal creditor has been secured, and that some other claims have been paid, the defendant shows, and the evidence is not controverted. These- facts are very strong. The declarations of defendant to plaintiffs’ attorney may have been made in anger and because annoyed by the persistence of the attorney, or in the way of bluff. It seems strange that if defendants intended fraud they should admit it by saying that they did not intend to use the proceeds of the sale in payment of debts. More reasonable is the idea that they intended to pay others first and meant that this plaintiff should wait. A debtor is guilty of no fraud in electing to use present funds in payment of particular debts. If the wife of defendant Golden was in fact a creditor, and she had relinquished, at, her husband’s request, to another creditor her real-estate.security, he might well pay her out of the cash proceeds ,of the sale. But these are mere speculations. The sum of the matter is this: The conduct of defendants indicates good faith • their declarations the reverse. The district judge believed their acts rather than their words. And we are not convinced that he- erred. Hence we must sustain his ruling.
The order of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, ¿T.:
This was an action on a promissory note, brought by Rachel Drawyer against Daniel Stainbrook. The defendant pleaded the statute of limitations. The note appeared to be barred by such statute, and was barred unless a certain payment, alleged by the plaintiff to have been made, and denied by the defendant, was in fact made upon the note; and the evidence was directed principally to proof and disproof of such payment. The depositions of various witnesses were read with reference to this question, and all the questions raised by counsel in this court have reference to these depositions, and to the evidence contained therein.
I. The first point made by counsel for plaintiff in error, who was defendant below, is as follows:
“ 1st. The depositions of Champion, Drawyer and Davison should have been suppressed, because not taken at the time in the notice specified, and because of .continuance of taking, without any reason therefor. (Kisskadden v. Grant, 1 Kas. 328; Bracken v. March, 4 Mo. 74.)”
Counsel for defendant in error answers in his brief as follows:
“ 1st. The court did not err in overruling the motion, to suppress the depositions of Champion, Drawyer and Davison. The case of Kisskadden v. Grant, 1 Kas. 328, is not analogous to this. In this case the taking of the depositions was commenced at the time and place in the notice specified, and Drawyer’s deposition was taken on the same day, and the ■depositions of Champion and Davison were taken on successive days thereafter until completed. The adjournments from day to day were necessary.”
We think the counsel for defendant in error is correct. The deposition of one of the witnesses (Drawyer) was taken •on the very day that the notice specified; and then, for a certain reason which we think was sufficient, the taking of the depositions was adjourned until the next day, which was Saturday. A part of the depositions was taken on that day, in the afternoon, and then the officers, not having sufficient time to finish taking the depositions, adjourned the taking thereof until Monday. And this we also think was for a sufficient reason. The notice specified that the taking of the depositions would be from day to day until the same were all taken; and the only seeming irregularity was that the taking of the depositions was adjourned from Saturday till Monday. But as Sunday is usually not considered a proper day on which to carry on judicial proceedings, the adjournment from Saturday till Monday was not an irregularity, and did not invalidate the depositions.
II. The second point made by counsel for plaintiff in error is as follows:
“ 2d. The courterred in admitting in evidence the pretended copy of the order in Leonard C. Drawyer’s deposition — no loss or destruction of said order being shown.”
To this point, counsel for defendant in error answers as follows:
“ 2d. The court did not err in admitting evidence as to the contents of the order. Proper grounds for the admission of this testimony were laid by the testimony of plaintiff in error. He was the proper custodian of the order, and was shown to have received it. This order was in the nature of a receipt. It was not necessary to show its loss in order to make this testimony competent. (Wolf v. Foster, 13 Kas. 116.)”
We think that counsel for defendant in error is correct in saying that proper grounds were laid for the admission of testimony concerning the contents of the order. The contents of the order, as testified to by Leonard C. Drawyer, were as follows:
“ Daniel StaiNBROOK: Please let Susan Jane Phenix. have fifty dollars, and I will credit the same on yóur note.
(Signed) Rachel Drawyer.”
Drawyer testified that he sent this order to Stainbrook. Drawyer further testified as follows:
“I was in the state of Kansas and saw Daniel Stainbrook in May, in the year 1872; had a conversation at that time with Stainbrook. Pie told me that he had paid the order of fifty dollars to Mrs. Susan Jane Phenix, and that he had paid her more than that. He said: ‘There should be indorsed one hundred and fifty dollars, instead of fifty dollars, on that note, because I have paid Jane [meaning Susan Jane Phenix] that, if not more/”
And Drawyer further testified as follows:
“I asked him [Stainbrook] to give a new note. He said he would do so; got pen, ink and paper, and sat down at a table to write a new note. He looked at the note in question, and when he saw that there was no indorsement upon it he refused to give a new note^until he had seen his lawyer. I said, ‘ There ought to be fifty dollars indorsed upon the note.” He replied that he had paid fifty dollars on the note, and more too. Said he had paid it to Susan Jane Phenix. He then refused to give a new note, and wanted me to buy the-note.” ■
Stainbrook himself testified that he received an order and paid fifty dollars thereon; but he could not tell the contents thereof, for it had been a long time, several years, since he saw the order. He does not know what he did with it. After Stainbrook had testified that he could not state the contents-of the order, he was asked the following question: “ Did not the order read substantially as follows: ‘Daniel Stain-BROOK: Please'let Susan Jane Phenix have fifty dollars, and I will credit the same on your note. — Rachel Drawyer.’? ” And his answer to the question was, “I could not tell you.” Proof of the contents of this order was, however, not absolutely essential in this case; for Stainbrook himself admitted,, according to the testimony of Drawyer, that he had paid fifty dollars on this note.
III. The counsel for plaintiff in error, as his third and last point, states as follows:
“3d. The court erred in admitting in evidence the paragraphs of Champion’s deposition on pages 10 and 11 of case-made. Those paragraphs are hearsay. Rachel Drawyer’s deposition was taken in this action.”
Counsel for defendant in error, in answer to this point, states as follows:
“3d. There was no error in admitting paragraphs referred to by counsel for plaintiff on pages 10 and 11. (1 Greenl. on Ev., §100, et seq.)”
We think the defendant in error is correct. The paragraphs mentioned were simply proof of authority given by Rachel Drawyer, the plaintiff below, to Edward H. Champion to collect the said promissory note from the defendant, and of course were not hearsay. Besides, they were wholly immaterial in this case, for they did not tend to prove or disprove the alleged payment on the promissory note; if they had been entirely stricken out, it would not injure the plaintiff’s case in the slightest particular.
We have now considered all the points made by counsel for the plaintiff in error (copying his brief in full), and we do not think the court below committed any error. Therefore, the judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
HortoN, C. J.:
This ‘was an action in the nature of ejectment, by plaintiff' against the defendant, for the recovery of 120 acres of land. The plaintiff claimed under the original or patent title; the defendant claimed upon the faith of a decree of the district court of Doniphan county, of September 15, 1876, rendered in an action then pending between G. I. and W. R. Stebbins, and plaintiff, and also under a tax deed of the date of November 30, 1876. On November 18,1875, G. I. and W. R. Stebbins, grantors of defendant, obtained a tax deed for the land in dispute; under this they took possession, and obtained a decree against the plaintiff, quieting their title, and on November 25, 1876, executed a deed to defendant.
This tax deed is void upon its face, as it recites a sale of ten distinct tracts of land together, for a gross amount. (Hall’s Heirs v. Dodge, 18 Kas. 277.) The judgment of September 15, 1876, is void and without any.force, for the reason that service was only obtained by publication, and no sufficient affidavit was filed; the affidavit failed to show that service could not be made personally on the defendant in that action within the state. Therefore the tax deed of November 18, 1875, and the judgment of September 15, 1876, gave no rights to the defendant’s grantors, and being void, they give no right or title to the defendant.
The tax deed of November 30, 1876, is challenged upon various grounds, only one of which, however, it is necessary in our view of the case to notice. The tax certificate recites that the sale was made on the 7th of May, 1872, for the delinquent tax of the year 1871. The redemption notice was as follows:
County Treasurer’s Office, Troy, Kas., Nov. 24,187.4.
Notice is hereby given to those whom it may concern, that the following described real estate was sold on the 13th day of May, 1873, for delinquent taxes of the year 1871, and that the three years allowed by law for the redemption of the same expire on the 14th day of May, 1875. Therefore any of said described real estate being unredeemed from said taxes in the time limited therefor will be conveyed to the purchaser by tax deed.
Robert Tracy, County Treasurer.
Q.UAR. ACRES. TAX.
Elizabeth Long.. N.W. 35 20 160 190 80
The State of Kansas, Doniphan County, ss.:
Sol. Miller, having been first duly sworn, says that the annexed list of lands and lots for redemption was published for five consecutive weeks, commencing the third day of December, 1874, in the Weekly Kansas Chief, a weekly newspaper of which affiant is editor, printed and of general circulation in said county of Doniphan ; and the annexed account is correct according to the best of his knowledge and belief, and the charges therefor according to law.
104 descriptions of land at 25c. $26 00
1155 lots at 10c..'. 115 50
12J squares notice and heading, five weeks. 37 50
Total.$179.00
Sou. Miller.
Subscribed and sworn to. before me, county clerk in and for said county, this 4th day of January, 1875.
[Seal.] Charles Rappelye, Clerk.
Piled January 4th, 1875.
This notice we deem insufficient, because contradictory and misleading in its terms, and so defective as to be fatal to the tax deed. It is true that it contains the substantial requirements of the statute; but it also'contains other statements and matters of such a character as to render it ineffectual. We have already gone to the extreme verge in the case of Shoup v. The U. P. Rly. Co., 24 Kas. 547, and Watkins v. Inge, 18 id. 612, in holding defective notices of redemption sufficiently valid, and do not think that the requirements of such notice can be weakened any further. Those cases deserve to be limited, rather than extended; and the principles there stated in reference to redemption notices must be held as applying only to the particular facts disclosed in the records then before us. The notice, though subsequent in point of time to the tax sale, is precedent to the acquisition of title, and must be substantially complied with. Counsel for defendant claim that,-as the errors in the notice were in favor of the plaintiff and against the defendant, and as some of the statements of the notice were unnecessary within the provisions of the statute, the plaintiff was not injured thereby. We do"not think the argument sound, because the errors and unnecessary statements tended to contradict the notice and mislead parties. If such errors and statements had been omitted, the notice would be valid.
Counsel for defendant suggest that plaintiff’s right to sue is barred by the statute of limitations of subdivision 3, §16 of the code, which provides that an action for the recovery of real property sold for taxes must be brought within two years after the date of the recording of the tax deed. The tax d.eed was filed for record November 30, 1876. This action was begun April 22, 1879. The law in force at the time of the commencement of the action was § 141, ch. 34, Laws of 1876, which took effect March 11, 1876, and reads:. “Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes, except in cases where the taxes have been paid, or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter.” Sec. 16 of the code cannot therefore be said to apply, as a different limitation is specially prescribed by the statute of 1876, and this action is governed by such limitation. The defendant must be remitted to his remedy for the taxes and improvements under the occupying-claimant act.
The judgment of the district court will be reversed, and the case remanded with directions to the court to proceed in accordance with the views herein expressed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action of ejectment, brought by plaintiffs in error, plaintiffs below, for the recovery of a portion of a lot in the city of Atchison. Judgment was rendered in favor of defendants, and plaintiffs allege error.
The first question arises on the motion of defendants to dismiss this proceeding, as to Mrs. Cheesebrough at least, on the ground of a quitclaim deed of the property obtained from her intermediate the judgment and the commencement of this-proceeding in error. This motion must be overruled. The deed as offered in evidence on-the motion is simply a quitclaim of the property. Nothing is said about the judgment in this case, nor any release made of the claim for rents and profits. Doubtless on a second trial it will prove a bar to any recovery of possession by the grantor. It may not prevent a recovery for rents and profits. And it does not discharge the judgment for costs. Whether those costs be one dollar or five hundred, there is a judgment therefor against the plaintiffs, and they each have a right to show that such judgment is erroneous and ought not to stand. If the defendants had paid and discharged this judgment, then a more serious question would arise. As it is, it is very clear that a quitclaim of the property does not prevent the grantor from showing errors in a prior judgment against her for costs.
The first error alleged is in refusing an application under the statute for a second trial. This was an action for the recovery of real property. True, there was coupled with it a claim for mesne profits, but such claim grows out of the right to recover the real estate. No cause of action for rents, as upon express contract, was alleged. The claim was for the real estate and damages for withholding the same. We do not think the addition of this claim for damages changed the nature of the action, or prevented the application of the statute. Of course, many an action may be brought in which other and distinct relief is sought than the recovery of real estate. There may be an action of forcible entry and de-tainer, an action for the correction of a deed coupled with a claim for possession. All these may be outside the statute. But when the action is under the statute, pure and simple, for the recovery of real estate, the right to a second trial is not destroyed by the addition of a claim for mesne profits. Nor is such right destroyed by the character of the answer. Under a general denial, every possible defense may be interposed. If, instead of such general denial, the .defendant sets out in detail an equitable defense, this does not change the character of the action or abridge the rights of the plaintiff. It is a grand mistake to suppose that by setting up in an answer an equitable defense to an action for the recovery of real estate, either the plaintiffs’ right to a jury trial, or a second trial, under the statute, can be abridged. Whatever effect such defense may have upon defendants’ rights, the plaintiffs’ are unchanged. They have commenced an action under the statute for the recovery of real property, and no rights given by such statute can be taken away by the character or form of the defense. For refusing a second trial on demand of plaintiffs, the court erred, and the judgment must be reversed.
We might properly stop here and wait for the issue of the second trial before considering the other questions raised by counsel. Yet we may save counsel and client labor by expressing our opinion on other questions. The only one we deem it necessary to consider is, that of the statute of limitations. We do not intend to anticipate any testimony which may be offered hereafter, or to foreclose the plaintiffs upon any question they may present. As the record now stands, and upon the questions suggested by counsel, we think the statute of limitations a bar to plaintiffs’ claim. The facts are these: This action was commenced September 10,1878. Defendants claim under a sheriff’s deed dated July 30, 1869, and recorded September 4,1869. This deed was based upon these proceedings: Anna E. V. Cheesebrough, one of the plaintiffs herein, was the administratrix of the estate of Ells-worth Cheesebrough. One S. R. Mabbett had a claim allowed against said estate. Upon a settlement made by the administratrix a balance was found in her hands sufficient to pay this claim, and under §190 of ch. 91 of the Comp. Laws of 1862, an order was made upon her for payment. This order was made February 4, 1867. The order not being complied with, on June 10, 1867, the probate court issued execution against her property as authorized by § 191 of said aGt; and Mabbett purchased at the sale thus ordered. Mrs. Cheesebrough was a resident of Atchison at the time, and so remained until the commencement of this action. At the time this sheriff’s deed was executed, and ever since, the statute contained this limitation: “An action for the recovery of real property sold on execution, brought by the execution debtor, his heirs, or any person claiming under him, by title acquired , after the date of the judgment, within five years after the date of the recording of the deed made in pursuance of the sale.” (Comp. Laws 1879, p. 602, §16, clause 1.) That statute fits this case exactly. This property was sold on execution. The action is brought by the execution debtor, and a late grantee from her, and not commenced until after five years from the recording of the sheriff’s deed. The execution was from a court of competent jurisdiction; and the statute of limitations is a bar to this action. Of course, if the court had jurisdiction and the proceedings were regular and complete, no aid of the statute of limitations is required. The title is perfect without it. That statute is in aid of defective proceedings, and to support titles based upon judicial action in which the critical and careful lawyer may detect errors. In this case Mrs. Cheesebrough was the administratrix of the estate of Ellsworth Cheesebrough, and as such subject to the lawful orders of the probate court in which such administration was pending. It is evident from the testimony that she knew of these proceedings, and that the lot now in controversy was being improved by the claimant under this title, at large expense. Yet no action is taken until after the improvements have been completed, and until nearly ten years have elapsed. Such delay suggests the curious and critical scrutiny of a lawyer, rather than the conscious assertion by a true owner of a rightful title. And yet after such delay the statute wisely interposes, and says that nothing in the way of irregularity shall now interfere with the title. The mistake in the description of the property, being evidently a mere clerical mistake, is not sufficient to bar the running of the statute, especially in view of the fact that possession was taken under the title and valuable improvements put upon the property, to the knowledge of the execution debtor. It may be remarked that no mistake appears in the notice of sale, appraise ment, or other papers prior to the deed, and that in that the simple error is, that the description reads “ part of bloele number seven in block number twelve,” when it should read “part of lot number seven,” etc. Neither this error nor any other matter referred to by counsel is sufficient to prevent the running of the statute. We shall not go into further detail in the consideration of this matter, for another trial may rest upon different facts. We simply state in a general way, that upon the showing now made, the statute of limitations must be adjudged a bar to the action.
The judgment will be reversed, and the case remanded for a new trial.
VALENTINE, J., concurring.
Horton, C. J., not sitting.
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The opinion of the court was delivered by
VALENTINE, J.:
About the only material question to be solved in this case is, with respect to the stipulation contained in the mortgage hereinafter mentioned. This case, or the record of the case, or to be still more exact, the record of the two cases now presented to us, is considerably mixed and confused. We have two cases blended together in one record, in strange and wonderful confusion; yet we suppose that upon such a record of two separate cases we are expected to make clear and lucid decisions; to make the crooked straight, and to give clearness and distinctness to that which is obscure and bewildering. In many cases it requires more labor to understand the record than it does to decide the questions of law involved therein, after we have ascertained what the record means.
We shall try to separate the two cases, and to decide each separately.
I. The first case was an action commenced before a justice of the peace, by John Seckler against John Delfs, for rent of certain real estate. Other persons were made parties defendant, whether rightfully or not, it is not necessary in this case to determine. On the trial the plaintiff introduced his evidence, and rested. One of the defendants (not Delfs) then demurred to the plaintiff’s evidence, and the court sustained the demurrer. And then, without the other defendants interposing any demurrer or making any motion, or doing anything else, the court rendered judgment against the plaintiff and in favor of all the defendants for costs. Whether this judgment was sustained by the evidence or not, we cannot tell, as none of the evidence has been preserved. The plaintiff afterward took this case to the district court on petition in error. In the district court this case was dismissed on motion of the defendants in error, because of a supposed waiver of errors by the plaintiff in error. It seems that after said judgment of the justice was rendered, the plaintiff, for some unknown and unaccountable reason, supposing it to be void, commenced another action in the district court against the same parties for the same subject-matter, in which action the plaintiff of course failed, the subject-matter thereof, having already been determined, and the questions involved having become res adjudicates. The supposed waiver of errors was founded upon the acts of the plaintiff in prosecuting another action for the same subject-matter. Now if he had a right to prosecute another action for the same subject-matter, after the final determination of the justice of the peace with reference thereto, we suppose that this second prosecution for the same thing would be a waiver of errors; but clearly having no such right, and his second prosecution being futile and void, we do not think that such a futile attempt could be construed into such a waiver. In other words, his treating the justice’s judgment as being absolutely void, a harmless nonentity, a nullity, could not be considered as a willingness to treat it as ■ absolutely valid, as final and conclusive, unreviewable, unreversible, and as though all errors and irregularities that might be contained therein were to be considered as right and proper. We think the court below erred in considering that the errors had been waived, and in dismissing the petition in error. But was the error material? We think not. It has never in this court-been considered material error, as against the plaintiff, for a court to dimiss his action where the judgment ought in fact to have been rendered against him upon the merits. But on the contrary, such an error has been considered as immaterial (Case v. Hannahs, 2 Kas. 490.)
In the present case judgment should have been rendered against the plaintiff upon the merits: that is, the judgment of the justice should have been affirmed. From anything' that we can see, no ruling was made by the justice prejudicial to the substantial rights of the plaintiff. The rulings of the justice of which the plaintiff complains, are: First, entertaining said demurrer; second, sustaining it; and third, rendering judgment in favor of those defendants who did not demur. It can make no difference whether the demurrer to the plaintiff’s evidence should have been entertained or not. The case was submitted to the justice-upon the evidence of the plaintiff as a finality and a conclusion on his part, unless the defendants- should afterward introduce evidence, which they did not; and upon the evidence as thus introduced, the justice decided that the plaintiff could not recover. It made no difference whether this decision was made at the instance of one or another of the defendants, or of all of them, or whether it was made upon the justice’s own motion. The justice heard all of the plaintiff’s evidence, and upon such evidence decided against him; and as the evidence was not preserved the district court could not have held otherwise than that the justice decided correctly. It will be remembered that the ease was tried by the justice alone, and withouta jury.
The judgment of the district court, on the petition in error from the justice of the peace, will be affirmed.
II. We now come to the second action. In the first action the plaintiff sued for rent due for three months, September, October and November, 1875. In the second action he sued for rent for five months, which included the same months for which rent was sued for in the first action, and also for the months of December, 1875, and January, 1876. As to-the three months’ rent he of course could not recover, for that had been determined in the first action. But could he recover for the other two months’ rent? The property was in the actual possession of the defendant Delfs, who was a tenant of the mortgagor. The plaintiff claims the rent from such tenant under and as the assignee of the mortgagor. The defendant.Bond claims the rent under and as the assignee of the mortgagee. It is therefore very important to ascertain the rights of the parties under the mortgage, and to examine the stipulations contained in the mortgage. There was a stipulation contained in the mortgage which reads:
“But if said sums of money or any part,thereof or any interest thereon be not paid when the same become due, then in that case the whole of said sums and interest shall by virtue of this mortgage immediately become due and payable; or, if the taxes and assessments of every nature which are or may be assessed or levied against sáid lauds and appurtenances or any part thereof, are not paid at the time when the same are by law made due and payable, then in like manner the said notes and the whole of said sums shall immediately become due and payable; and upon the forfeiture of this mortgage, or in case of default of any of the payments herein provided for, the party of the second part shall be entitled to the possession of the said lands and appurtenances and all the improvements thereon, and the rents, issues and profits thereof, and the said party of the second part may then and in any such case immediately enter into and upon the lands hereby mortgaged and all the buildings and improvements thereon, and may remove and put off and from said lands, buildings and improvements all and every person or persons whomsoever, forcibly if necessary, and may have, take and retain possession of said lands, and the buildings and improvements thereon, and receive and take the rents, issues and profits thereof; and a failure on any part of the said party of the second part, his representatives or assigns, to take advantage of, or to enter into or upon said lands, buildings and improvements, for or upon the happening of any forfeiture or forfeitures, shall not operate as a waiver thereof, and shall not preclude or bar him from taking advantage thereof, on the happening of any other forfeiture or cause for so doing.”
The mortgage became due, and a suit was brought thereon by Putnam, the mortgagee, to foreclose the same; but afterward' lie assigned all his right, title and interest therein to Bond and others, who continued the prosecution. The rent for the two months of December, 1875, and January, 1876, had not yet accrued, when this suit was brought, but there was no order made at any time in the foreclosure suit with regard to these rents, or to any other rents, or as to the possession of the property. The plaintilf demanded these rents of the tenant immediately after they became due; but the tenant refused to pay them to him, and finally paid them to the defendant Bond, who was assignee of the mortgagee. Afterward, the plaintiff commenced this action for said rents against the tenant Delfs, and Bond and Arthur A. Mosher. All persons claiming an interest in the rents were made parties defendant. Afterward, judgment was rendered in the foreclosure case, against the mortgagor and in favor of the mortgagee, for the full amount due on the notes and mortgage, without giving any credit for said rents paid to the assignee of the mortgagee, and no such credit has ever yet been made. Afterward, judgment was rendered in the present case, in favor of the defendants and against the plaintiff. And this is the judgment which the plaintiff in error, who was also plaintiff below, seeks to have reversed.
We now come to the main question involved in this case, to wit, did the said stipulation in said mortgage, without any foreclosure and without a receiver being appointed, give to the mortgagee or to his assignee any right to take as his own the rents and profits of the mortgaged property? We must answer this question in the negative.
1. This mortgage was not a chattel mortgage in any respect; nor was it so treated or considered by any of the parties; but on the contrary, it was a pure and simple real-estate mortgage.
2. Nor was the mortgage intended to be a sale or conveyance of any of the property therein described. There was no intention that the mortgage should of itself, with or without a violation of any of its terms, transfer the title to any of the mortgaged property, either absolutely or conditionally, or otherwise; but, on the contrary, it was intended that the instrument should be a mere mortgage, a security, a pledge, giving to the holder thereof only a lien upon the mortgaged property, to be enforced just as other real-estate mortgage liens are enforced.
A literal reading of the foregoing stipulation might seem to make the mortgage mean more than this; but, within the light of our own statutes, and the decisions of this court, a fair reading of the stipulation cannot make it mean more than we havestated. (Comp. Laws of 1879, p. 555, § 1; id., p. 654, §399; Chick v. Willetts, 2 Kas. 385; Waterson v. Devoe, 18 Kas. 233.) In this state, a real-estate mortgage conveys no estate or title, in whatever form the mortgage may be drawn; it creates only a lien upon the mortgaged property. And such lien can be enforced only by a judgment or order of the district court. A holder of a real-estate mortgage cannot, even after condition broken, take possession of the mortgaged property, or of the rents or profits thereof, except by consent of all the parties, or by an action in the district court; and he canüot realize upon his mortgage, except by judgment of such court. And this is true, whatever the form of the mortgage may be. Even if it were in form a deed absolute, still in its nature and character it would b,e only a mortgage.
Where the mortgaged property is not a sufficient security for the mortgage debt, the district court may in some .cases appoint a receiver to take charge of the mortgaged property, and to receive the rents and profits thereof, but in no case can the holder of the mortgage, without suit, and without the consent of the mortgagor or his assignee, take nossessiolf-gPelFlTgr'&he real estate mortgaged, or the rents or profits thereof.
In the present case the rents ror the months of December, 1875, and January, 1876, belonged to the plaintiff, and the tenant Delfs ought to have paid them to the plaintiff, and not to Bond, as he did. Indeed, if we could only reach the right and justice of this case, or rather of the two cases which we have been considering, the plaintiff ought to be able to recover the whole amount for which he sued.
The judgment of the district court in this ease will therefore be reversed, and cause be remanded with the order that judgment be rendered in favor of the plaintiff, and against the defendants Delfs and Bond, for the said two months’ rent, and for costs.
All the J ustices concurring.
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The opinion of the court was delivered by
Ho ETON, C. J.:
This was an action in the nature of quo warranto, prosecuted by the plaintiff to try the right between himself and defendant to the office of school director of School District No. 16, in Allen county. The case was submitted to the court,.a jury being waived, upon the following agreed statement of facts:
“1. That School District No. 16, in Allen county, Kansas, 'is a public corporation, under the laws of said state.
“2. That the office of director of said school district is a public office, under the laws of said state.
“3. That in said school district there is a stone school building, owned by and belonging to said school district, and used for school purposes.
“4. That there is also in said school district a frame building known as ‘Germania hall/ which the school board of said school district rented for school purposes in April, 1879, for five years.
“5. That said Germania hall is situated five blocks north of, and on the opposite side of the street from the stone school house.
“6. That the clerk of said school district, in calling the annual meeting of said school district for the year 1880, used a form of notice furnished by the state superintendent of public instruction, calling said meeting to be held at the school house belonging to said district, on August 12, 1880, at 2 o’clock p. M., the same being the second Thursday of August.
“7. That in posting up said notices, as provided by law, the clerk of said district posted one of said notices on the outer door of said stone school house, and did not post any on Germania hall.
“8. That the annual meetings of said school district have always since its creation been held at the stone school house, and the bell of said school district used to call the qualified electors of said district together.
“9. That in the year 1880 the bell was not rung.
“10. That in the year 1880 (this year), on the day on which the annual meeting was called to be held, to wit, the 12th day of August., 1880, .the same being the second Thursday of said month, the clerk of said school district, about half an hour before the time for holding said annual meeting, decided to have the same held at Germania hall instead of at the stone school house.
“11. That of this decision at the time it -was made, the director and treasurer of said school district were ignorant. That the director did not learn of the change until about 2 o’clock p. M., when the clerk met him at the northwest corner of the square and told him he had had Germania hall ■opened up and swept out for the purpose of holding the meeting there, and the treasurer did not learn of it until he returned to the city, he then being away.
“12. That pursuant to this decision and determination of ■said clerk, he the said clerk notified those persons whom he saw, and sent a small boy to stand at the door of the stone school house and tell any who might come there that the meeting would be held at Germania hall.
“13. That quite a large number of those in attendance at Germania hall learned that the meeting was being held at ■Germania hall by the merest accident, and while on the way ■to the stone school house.
“ 14. That a large number of the qualified electors of said ■district never learned that said meeting was being held or was to be held at Germania hall.
“15. That several of the qualified electors of said district were expecting the bell to ring as usual, and waiting therefor before starting for said meeting, and not hearing any bell, supposed that no annual meeting was being held on that day, and were thereby prevented from attending.
“16. That a large number of the qualified electors of said school district never consented that the annual meeting should be held at Germania hall, or had any notice of any school meeting at Germania hall, among whomwas the plaintiff and fifty other electors of said district.
“17. That the clerk of'said district, after he got to Gtr-mania hall, and before the meeting there commenced, was notified by at least one qualified elector of said school district that Germania hall was not the place provided by law for holding the annual meeting; and he replied; that he did not ■care — he was going to hold it there anyhow.
“18. That after the meeting had opened and commenced business at Germania hall, certain other citizens, after having started down to the stone school house, and learning on the way that the meeting was being held at Germania hall, and being thereby detained on their way to the meeting, called the attention of those assembled to the fact that that was not the place provided by law for holding the annual meeting, and objected to its being held there, but the director overruled the objection.
“19. That after this public notification that the meeting was not being held in the place provided by law, those qualified electors assembled, some thirty in all, proceeded to transact the usual business of the annual meeting, and as a part of it to vote for a director for the ensuing term of three-years. '
“ 20. That the defendant and George A. Amos, Esq., were each voted for for said office. That the defendant received 16 of the votes cast for said office, and George A. Amos 14 of the votes east for said office.
“20-|-. That immediately prior to the adjournment of the meeting at the hall, a motion was made to adjourn to the stone school house and hold a legal meeting, which motion was voted down.
“21. And after the business was transacted and the meeting adjourned, those assembled were notified by a citizen and qualified elector present that there would be a legal meeting held at the stone school house right away.
“ 22. That on the same day, to wit, the second Thursday in August, being August 12th, 1880, after the meeting at Germania hall had adjourned, the plaintiff and some nine or ten other qualified electors of said district who had not been notified of the meeting held at Germania hall, or taken any part therein, met at the stone school house because of the notice specified in No. 6 above, and the statute in such case-provided, as claimed by those participating therein, and being unable to gain admittance to said stone school house, and the directors and clerk of said district being absent, they organized sáld (as claimed by them) annual school meeting by electing a ghairman and clerk, as provided by law, and adjourned to-meet again in two weeks, to wit, on Thursday, August 26, 1880, at 2 o’clock p. M., at said stone school building, as an annual school meeting, and to transact the business of the annual school meeting.
“23. That after each of the above meetings had adjourned,, to wit, on or about the 14th day of August, 1880, the de fendant J. W. Patterson was sworn in as director of said school district.
“24. That at the adjourned (as claimed by those participating) annual meeting held on the 26th day of August, 1880, at 2 o’clock p. M., at the stone school house, the director of said school district being absent and the clerk of said school district refusing to take any part in said meeting or act as clerk thereof, the chairman and clerk of the meeting, as organized at the school house on August 12th, 1880, acted as chairman and clerk of the adjourned meeting.
“25. That at said adjourned (as claimed by those participating) annual meeting, held at the stone school house on the 26th day of August, 1880, at 2 o’clock p. M., the usual business of the annual school meeting was transacted, and as a part of it they proceeded to vote for a director of the school district for the ensuing term of three years.
“26. That the plaintiff, Wm. Wakefield, and the defendant, J. W". Patterson, were each present at said adjourned (as claimed by those participating) annual meeting, and were each, without objection on the part of the defendant, nominated and voted for for said office of school director; that there were eighty-five of the qualified electors of said district present at said adjourned (as claimed by those participating) annual meeting, and that the plaintiff received the votes of 52 of the qualified electors there present and voting, and the defendant 33 of the votes of the qualified electors there present and voting, for said office; that the plaintiff was declared to have a majority of 19 of the votes cast for said office, and was declared duly elected to said office of director of said school district.
“27. That afterward, to wit, on or about the 28th day of August, 1880, the plaintiff was fully qualified to fill said office, and was sworn in as director.
“28. That the defendant still continues to occupy and hold said office, and perform the duties thereof.
“29. That the clerk of said (as claimed by those participating) annual school meeting, held at the stone school house on August 12, 1880, and of the adjourned (as claimed by those participating) annual school meeting, held August 26,1880, at the stone school house at which the plaintiff was elected director as above set forth, presented the minutes and proceedings of the said meetings, together with the oath of office of the said plaintiff, to the clerk of said school district, with the request that he enter the same on the records of said school district, and certify the action of said meetings to the county superintendent of public instruction, and the county clerk of said Allen county, as the law requires; and that the said clerk then and there refused and still refuses so to do.
“ 30. That at said adjourned (as claimed by those partici.pating) annual, meeting the treasurer of said school district made a condensed report, and stated that he would make a full report, but that in his absence his report had been read at the meeting at Germania hall and referred to a committee of the qualified electors then present for examination, and had not been returned to him.
“31. That at said adjourned (as claimed by those participating) annual meeting the clerk of said district was called upon for a report and refused to make one, stating that he had reported to the meeting held at Germania hall.
“32. That at said adjourned annual meeting a tax was levied as required by law for teachers’ wages add general revenue, and the clerk of said district requested to certify the same up to the county clerk, which he refused to do.
“33. That when said adjourned (as claimed by those participating) annual meeting held on the 26th day of August, 1880, adjourned, it adjourned to meet again in two weeks from that date, and requested the clerk and .treasurer of said district to make their reports to said adjourned meeting, which the clerk of said district refused to do.
“34. That there are at least two keys, to the stone school house, one of which is kept by the janitor of the Presbyterian church, who worked then for the treasurer of the school district, and the other by the janitor of the Methodist church, who then worked for a grocery firm in the city of Humboldt, and that either of said keys could have been obtained by asking for it.
“35. That the stone school house has the same seats and rooms now that it has had for the last four or five years, and' that the annual meetings have in the past always been held at the stone school house, without complaint as to the seats or heat.
“36. That th.e director of said school district did not know that the annual meeting was to be held at Germania hall until about two o’clock p. m. of the day on which it was held, when the clerk met him in the street, and told him that he had opened up and swept out Germania hall in order to hold the meeting there.
“37. That the director of the said school district then supposed that the meeting was called by the clerk to be held in Germania hall, and did not know that the notices posted by the clerk called the- meeting to be held at the school house belonging to said district, until after the meeting at the hall had adjourned.
“38. Said Germania hall is about three times nearer to the public square than the stone building.
“39. That since said hall was rented for school purposes, said stone building has been used exclusively for the primary department, and since said date the principal and his assistant have taught only in said hall.
' “ 40. Since said hall was rented for school purposes it has been, and by the terms of said lease is, under the exclusive control of the school board.
“41. That the treasurer was absent from the city at the time of holding said meetings on the 12th day of August, and that the clerk decided to hold said meeting at the hall, for two reasons: first, because owing to the absence of the janitor from town he could not get the key, or get into the stone building without breaking the door; and second, because he considered it cooler at Germania hall, and because the seats at the hall were more fitted for adults, and those of the stone building were fitted for infants.
“42. When it was determined to hold said meeting at the hall, the clerk employed and paid a boy fifty cents to stand at the stone school house for two hours, beginning at 2 P.M., and notify alb persons coming there that the school meeting was being held at the hall, and said boy did stand there from 2 P. M. until the Germania hall meeting adjourned.
“43. That all who met at said stone school house knew of the fact of the meeting having been held at the hall by report when they met at the stone school house, but not before.
“44. There were ten votes all told who participated in the meeting at the stone school house on the 12th of August, and three of these had also participated in the meeting at the hall.
“45. The meeting at the hall was called to order at 2-J o’clock. The meeting at the stone school house on the 12th of August was convened at 4 o’clock p. it.
“46. The clerk and treasurer were present at the second meeting at the stone school house, but no report of the clerk was made, and the clerk notified said meeting that he recog nized the prior meeting at the hail and its proceedings as valid on account of advice from counsel, and had already made report thereof to the county superintendent.
“47. That all who were at the meeting at the hall participated in its proceedings and voted, including all who at said meeting objected in any manner thereto.
“48. That the attendance at the hall on August 12th was an average of the attendance at annual school meetings.
“49. There are about seven hundred persons in said school district entitled .to vote at school elections.
“50. That the meeting at the hall was presided over by G. A. Amos, the then clerk, and the same was held under the auspices of the clerk and director, who, after deliberation stated above in number 36, the treasurer being absent from the county, had determined to hold said meeting at said place; and at said meeting the chairman declared as the result of said election that the defendant was duly elected director of said district; and he forthwith proceeded to qualify as such; and since that time he has been acting as such, and no other than himself has acted as such.
“51. The proceedings at the hall meeting were duly recorded by the clerk, and certified up to the proper officer as required by law. Said meeting levied a tax for school purposes, which has been placed upon the tax roll by the county clerk.
“52. That at the third adjourned meeting, herein referred to, no treasurer’s or clerk’s report was made, but the committee appointed, at the second meeting to examine the treasurer’s report reported favorably on the report submitted to it.
“53. That Germania hall fronts to the south, and has its windows on the east and west.
“54. That the stone school house fronts to the east, and has its windows on the north and south.
“55. That for several years the stone building has been used only for the primary department, while the other depart-menthas been held in other buildings rented for that purpose.
“It is hereby stipulated that the above case may be submitted on the above statement of facts, and that all facts pleaded shall be considered in issue the same as if said pleadings were verified.”
The court thereon decided that the plaintiff had no title or right to the office in controversy, and rendered judgment in favor of the defendant for costs. The plaintiff brings the case to this court.
Sec. 6, ch. 92, p. 825, Comp. Laws 1879, provides:
“ An annual meeting of each school district shall be held on the second Thursday of August of each year, at the school house belonging to the school district,'at half-past two o’clock p. M. Notice of the time and place of said annual meeting shall be given by the clerk, by posting written or printed notices in three public places of the district, at-least ten days before said meeting. Special meetings may be called by the ■district board, or by a majority of the legal voters of the district, but notice of such special meeting, stating the purpose for which it is called, shall be posted in at least three public places within the district, ten days previous to the time of such meeting.”
The contention on the part of the plaintiff is, that as the meeting of the voters of the school district on August 12, 1880, was held in the building known as “Germania hall,” instead of at the stone building belonging to the school district, all of the proceedings were invalid, and the defendant acquired no title or right to the office by virtue of the proceedings had at Germania hall. It is further contended on othe part of the plaintiff, that he was elected to the office of director at an adjourned meeting of the inhabitants of the school district, held on August 26, 1880. In order to support the claim of plaintiff, it is urged that the words “ belonging to” are used in the statute to express absolute ownership, and that the annual meeting of the school district could not have been held legally at any other place than at the stone school building. It appears from the agreed statement of facts that the notice of the annual meeting was properly given; that.the clerk decided to hold the meeting at Germania hall under the charge and control of the school board, the same having been rented for school purposes in April, 1879, for five years. This building was situated on the opposite side of the street, only five blocks north of 'the stone school house. The reason for the decision of the clerk was, that on account •of the absence of the key he could not get into the stone school house without breaking the door; also because he considered the hall the cooler place and the seats therein more convenient for the persons attending the meeting. The director of the school district participated in the meeting, but the treasurer was absent from the city. The attendance at the hall was an average of the attendance at the annual school meetings of the district; the meeting was called to order at half-past 2, and presided over by the clerk, and held under the direction of the, clerk and director. The clerk employed and paid a boy to stand at the school house for two hours, beginning, at 2 o’clock p. M., to notify all persons coming there that the annual meeting of the district was being held at the hall, and in accordance with such employment the boy remained at the stone school house from 2 o’clock P. M. until the Germania hall meeting adjourned. The proceedings at the hall meeting were properly recorded by the clerk, and certified up to the proper officer, as required by law, and the meeting levied a tax for school purposes, which has been placed upon the tax roll by the county clerk.
Upon these facts, it seems clear to us that the holding of the meeting at Germania hall did not render the proceedings of the annual meeting there had illegal, or the election of the defendant void. The hall, while not owned in fee by the school district, was under its charge and control for school purposes, under a lease for a term of five years. No one was misled by the holding of the meeting at such place, as all persons going to the stone school house were notified where the meeting was being conducted, and the usual number of inhabitants participated in the meeting. It is unnecessary to discuss the other questions presented by counsel. The judgment of the district court must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The sufficiency of the record presented for our examination is challenged by defendants in error, and this challenge we are constrained to hold must be sustained. The case was tried by a referee, and no bill of exceptions was preserved. A motion to confirm his report was, with some modifications, sustained. The plaintiff in error attempted to prepare a case-made, but the certificate of the judge shows that it was never settled and allowed by him. The certificate commences: “I don’t know as it would be just to say that this paper is settled and signed for what appears upon its face.” He then proceeds to state certain facts that transpired in the case; says that the testimony as prepared and presented to him is not true, and nowhere settles and allows the record presented as a case-made. He says that the testimony taken before the referee was reduced to writing and returned into court, and that he had suggested to counsel that it ought to be set out in the case-made; but it was not so set out, and has never received his approval. To this case-made is attached that which the clerk certifies was the testimony, but the clerk cannot make a case. That which is to become a part of the case-made must be presented to and approved by the judge. Neither clerk nor counsel can settle a case. And when the judge signs and allows it, the record must be complete and perfect. (A. & N. Rld. Co. v. Wagner, 19 Kas. 335; M. & K. T. Co. v. Palmer, 19 Kas. 471; Shumaker v. O’Brien, 19 Kas. 476; Winstead v. Standeford, 21 Kas. 270; Hodgden v. Comm’rs of Ellsworth Co., 10 Kas. 637.) Probably also upon the testimony which follows the signature of the judge, the ruling of the district court would have to be affirmed. The only question which could be considered would be, whether the judgment was against the evidence, and where that is conflicting the ruling of the trial court must always be sustained.
But for the reasons first stated, the judgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
Plaintiff in error filed her petition in the ■district court of Washington county, on the 22d day of Jan uary, 1880,-alleging that she was the owner in fee simple, and had and held the quiet, peaceable and undisturbed possession of certain town lots in the city of Washington, and was at that time residing upon them as hotel grounds; that she and her grantors had held the quiet and peaceable possession of the same for more than fifteen years; that each lot had a depth from north to south of 165 feet, and that she and her grantors had held possession of the ground embraced in the lots for the full depth of 165 feet from north to south during all of said time; that upon the north 16-|- feet she had erected lasting and valuable improvements, buildings of great value; that there is no alley platted, or in said block where the lots are situated, running from east to west and dividing the block;. that defendant in error, who was street commissioner of the-city of Washington, threatened, as such officer, and was about to tear down, remove and destroy the buildings and improvements on the north 16 J feet of said lots, and that he would do so unless restrained by the court; that the same would result in loss and damage to plaintiff in error, that the damage would be lasting and irreparable, and that plaintiff in. error had no adequate or sufficient remedy at law; and prayed for an order restraining defendant in error and his successors in office from doing the wrongful act.
Upon this showing the judge at chambers ordered that defendant in error be temporarily restrained from doing the alleged wrongful act. An undertaking was duly executed,, as ordered, and was approved.
To this petition defendant filed his answer, on the 21st day of February, 1880, admitting that he would have done the-act complained of, but for the order of the court; and justified by alleging that the 16J feet of ground from which he intended removing the buildings was not the property of the plaintiff in error; that her alleged possession was wrongful; that the 16|- feet of disputed ground had been dedicated as an alley of said city of Washington, and belonged to the public generally for public use. On March 2,1880, plaintiff replied by denying generally the allegations in the answer. On- March 12, 1880, defendant in error moved to have the order granting the temporary injunction set aside, for the reason that the allegations in the petition upon which it was granted ai’e not true. This motion was heard by the judge of the court at chambers, upon affidavits, and he evidently found from the evidence introduced that the allegations and grounds upon which the injunction was granted are not true, and consequently dissolved the injunction. The order of the judge made upon the hearing of the motion, reads as follows:
“It is considered and ordered that said motion be allowed, and that the injunction heretofore granted in said cause be and the same is hereby dissolved and set aside and held for naught.”
After this order was made the plaintiff in error made a case for the supreme court, and in such case inserted the following agreement, to wit:
“ It is agreed between the parties to this* action that the ground upon which the district judge made the order dissolving the temporary injunction in said action is, that the evidence introduced upon the hearing of said motion at chambers established, in the opinion of said judge, the falsity of the matters and allegations generally set out in the verified petition of the plaintiff upon which the temporary injunction was granted, not that defendant did not intend to remove the buildings and improvements from the disputed ground, but that the evidence, in the opinion of the judge, showed that the allegations in plaintiff’s petition, that the disputed territory is not a public alley, and that the same is a part of plaintiff’s lots, are not true; and the only question which it is desired that the supreme court shall pass upon is, whether or not the judge had jurisdiction at chambers to make the order dissolving the temporary injunction upon said ground, and all other errors, if there be any, are waived; and it is further agreed that if this question be decided in the affirmative by the supreme court, that the order of the judge dissolving the injunction may be affirmed, and that if it be decided in the negative, that said order may be reversed; and it is understood between the parties that the question as to whether or not the judge erred in his opinion as to what the evidence showed, is not to be presented to the supreme court.
“Dated this 15th April, 1880.”
It will be seen from the foregoing agreement that the only-question for this court to consider is, whether or not the said judge had jurisdiction at chambers to make said order dissolving said temporary injunction upon said ground that the disputed tract of land did not belong to the plaintiff, but that it was a public alley.
We think that the judge had fully as much jurisdiction to find that the property did not belong to the plaintiff, and to •dissolve the injunction, as he had in the first instance to find or .assume that the plaintiff did own the property, and to grant the injunction. In either case we think the judge had ample jurisdiction. And the decision of the judge in either case as to the ownership or status of the property can hardly be called a judicial determination. It is not an adjudication that can affect anything further than the granting or diásolv-ing of the injunction; and except for the granting or dissolving of the injunction, it is no adjudication at all. It does not affect the ownership or status of the property, and cannot affect any question that may eventually arise on the final trial of the case upon its merits.
We think the judge of the court below had jurisdiction to make the decision which he did, and that the decision is right; and therefore it will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This is an action brought by Hammond against the railroad company, to recover the value of certain stock alleged to have been killed by the plaintiff in error in the operation of its railroad. The suit was commenced before a justice of the peace,, and from a judgment there rendered against it the railroad company, on November 12,1880, appealed to the district court of said county. The district court convened on December .20, 1880, and this case was set for trial December 28, 1880. On December 24, the railroad company filed a written motion to dismiss its appeal. On the same day this motion was argued and submitted. On the 27th, the court overruled the motion to dismiss, and the case subsequently went to trial and judgment.
Without noticing any further matters in the record, we are clearly of opinion that the court erred in overruling this motion. A party who takes an appeal can withdraw it at any ' time before the commencement of the trial, and probably at any time before the final submission of the case. Generally it is true in legal proceedings that a moving party may abandon his proceedings at any time before the final submission. And an appeal is simply a proceeding of one party, the appellant. It is as much under his control as the prosecution of an original action is under the control of the plaintiff. Either may cause the opposite party annoyance, vexation and expense, and yet the right to prosecute and withdraw is clear. Counsel for defendant in error places reliance on two decisions ■of this court, (Blackshire v. A. T. & S. F. Rld. Co., 13 Kas. 514; City of Kansas v. K. P. Rly. Co., 18 . Kas. 331,) in which it is held that an appeal vacates the judgment of the justice; and the argument is, that if the judgment is vacated by the appeal, a dismissal of the appeal, like a dismissal of the case, leaves the party without any judgment.- Not so; the statute in terms provides (Comp. Law 1879, p. 720, § 124) that “if the appeal be dismissed, the cause shall be remanded to the justice of the peace, to be thereafter proceeded in as if no appeal had been taken.” I,n other words, the failure of the ■appeal revives the judgment, and restores the parties to all rights existing at the time of the appeal. The vacation of the judgment by appeal is in a certain sense conditional. When judgment is rendered before a justice, the party aggrieved thereby has two remedies: appeal, or petition in error. If he pursue the latter, he leaves the judgment, as a judgment in full force. True, by supersedeas bond he may stay execution, but the judgment remains intact until set aside by the decision of the reviewing court. If he appeal, he takes the whole case up, and it is tried in the district court as though no judgment had ever been rendered. The inquiry is not whether the justice’s judgment was correct upon the testimony there presented. The plaintiff does not hold one judgment while litigating for another. He cannot have two judgments for the same cause of action. The one is vacated, conditionally it may be, but still vacated until the disposition of the appeal. If on the appeal a new judgment is rendered either way, the judgment before the justice never comes into life again; but if the appeal is dismissed, no new trial is necessary to revive and rehabilitate the former judgment. The statute declares that it shall be as though there had been no appeal. By petition in error, the judgment is taken up for review; by appeal, the case is taken up for trial. Until the former is sustained, the judgment is undisturbed; when the latter fails, the judgment is restored. (MacKey v. Pierce, 3 Wis. 307; Shiff v. Brownell, 4 Wis. 285; Helden v. Helden, 9 Wis. 527; Bacon v. Lawrence, 26 Ill. 53; Diffenderffer v. Hughes, 7 Har. & J. 3; Newson v. Douglass, 7 Har. & J. 417; 4 Wait's Pr. 237.)
The judgment will be reversed, and the case remanded with instructions to sustain appellant’s motion to dismiss the appeal. All costs since such motion will be taxed against the-appellee.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action of ejectment, brought by Washington Libbey against William H. Clark, for the recovery of certain real estate. The subject-matter of this action is precisely the same as that of the case of William H. Clark against Washington Libbey, which has twice been in this court, and is reported in 14 Kas. 435 and 17 Kas. 634. After the case of Clark against Libbey had been returned the second time from this court to the district court, the defendant in that case, Washington Libbey, removed the case from the district court of Franklin county to the circuit court of the United States, where, upon stipulation of the parties, the case was dismissed without prejudice. Clark in the mean time obtained possession of the property. Libbey then commenced this action in the district court of Franklin county, Kansas. A trial was had in the district court, which resulted in a judgment in favor of Clark and against Libbey, who now brings the case to this court, seeking a reversal of said judgment.
The facts in this case are reported in the case of Clark v. Libbey, 17 Kas. 634, et seq. The only new facts in the case are embodied in an affidavit for a continuance filed by Lib-bey and read on the trial of the case, with the consent of Clark, as the deposition of William Hurr. Said facts .ares as follows:
“That afterward, on or about the 13th of November, 1872, the defendant Clark came to him (said Hurr), then at his home in the Indian Territory, and represented to him that the title to said land so conveyed to him .by Mr. Kalloch was defective or doubtful, and that Mr. Kalloch had conveyed it, with warranty, to Mr. Washington Libbey, the plaintiff. That he, said Clark, desired to get from Mr. Hurr and wife a quitclaim deed-, conveying the property to him,' Clark, for the purpose of conveying it over to Libbey, in order to perfect and confirm his title acquired from Kalloch; and that he, Clark, would convey to Libbey, on receiving from him the $200. He would pay Hurr for such quitclaim, and a fair compensation, in addition to the said $200, for his, Clark’s, services in procuring such quitclaim; that thereupon, said Hurr, induced and relying on said representations, made, executed and delivered to said Clark his quitclaim deed, purporting to convey said real estate to him, in fee, in consideration of $200 then paid to him by Clark (although the land was then worth about $3,000), and of a written obligation, then and there made, executed and delivered to him by said Clark, which is annexed as an exhibit marked ‘ B ’ to the deposition of said Libbey, now on file in this cause; and that he, said Hurr, would not have executed said quitclaim deed to said Clark without the obligation aforesaid; and that said quitclaim deed is the only conveyance of said property he (said Hurr) ever made to said Clark.”
Said exhibit ‘B’ is copied in full in 17 Kas. 635, but the only portion of it which has any special application to-this case reads as follows:
“I [William H. Clark] do hereby agree to notify certain parties, who claim to have title to said land from William Hurr, that I now have the same, and to offer to perfect their title to said land; and it is hereby agreed and understood that, in case said parties refuse and neglect to purchase the said title within sixty days from the date of notification, then and in that case I am to be released from any and all obligations to convey the said title to said parties.”
We do not think that these new facts can make any possible difference in the decision of this case. Clark has complied with everything that he agreed to do. He notified Libbey of his purchase of the property from Hurr on December 3,1872;. and he again notified Libbey of said purchase on February 17, 1873, giving Libbey a full and fair statement of his title, and asking Libbey to make him an offer of some kind for his-title, and stating that any offer that Libbey might make would be favorably considered; but Libbey refused to make any offer, but stated substantially to Clark that his title was already good enough. Clark not only waited the sixty days from the notification of Libbey, as he had agreed to do, but he also waited about three months before considering his own title good, or before commencing any proceedings to obtain the-property; and he has now waited several years without Lib-bey even offering to pay anything for his title. The first, notification was given on December 3, 1872, and this action-was commenced by Libbey on November 20, 1879, nearly seven years afterward. Even if Libbey obtained any rights-under or by virtue of said instrument in writing, marked “Exhibit B,” and which Clark executed, he has forfeited all-such rights by refusing to comply with its terms, or to accept anything under it; and Libbey does not even now offer to-pay Clark anything for his title.
The judgment of the court below will be affirmed.
All the Justices concurring.
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By the Court,
Safford, J.
This was an action for slander brought by Annis Dey against John T. Swartzel, in the District Court of Wyandotte county.
The words charged in the petition to have been spoken of the plaintiff by the defendant, were “ shut your mouth you damned whore.” The defendant admitted the speaking of the words, alleging that at the time of the speaking, the plaintiff kept a house of ill-fame, then and there resorted to for the purpose of public prostitution — as matter of justification.
The case was first tried at the April term of said court, 1864, and a verdict rendered for the plaintiff for $2,500 damages. The defendant at the same time moved the court for a new trial on the ground of excessive damages, which motion was granted and the cause continued.
At the April term of said court 1865, a second trial was had and a verdict rendered in favor of the plaintiff for the sum of $2,000 damages.
Thereupon the defendant moved the court for a new trial: 1ft. On the ground that the damages were excessive and must have been given under the influence of passion or prejudice, and 2d. Because the verdict is not sustained by sufficient evidence and is contrary to law.
The court overruled the motion and gave judgment for the plaintiff in the said sum of $2,000, to which ruling and judgment the defendant excepted and brings the case to this court for review. Yarious rulings of the court upon questions arising during the progress of the trial, are assigned for error, as well as the ruling upon the motion for a new trial.
The question as to whether or not the court erred in overruling the motion for a new trial will be first considered.
The plaintiff introduced testimony going to show that her character for chastity was good ; one witness testifying that it was such and three others that they had never heard anything against it.
The defendant offered testimony to show that the plaintiff kept a small hotel, and that lewd women were living there in 1859 and ’60, as inmates of plaintiff’s family; that the fact of such persons being there was known in the neighborhood and spoken of. The defendant himself testified that previous to the speaking of the words complained of he had heard the report, — as to one of the women, that she was a loose character, from some of the boarders at plaintiff’s house and from neighbors. There is no evidence showing that the plaintiff was acquainted with the character of the women spoken of.
Aside from some testimony concerning the time and place of the speaking of the words by the defendant and the presence oí third persons, the foregoing is the substance of the evidence that was permitted to go to the jury. It is nowhere shown that any one believed the words spoken to be true of the plaintiff, but the record exhibits the fact that she was married to one Hey during the pendency of the suit.
Under such circumstances as they appear from the testimony, (and it may be remarked that -the record purports to give the whole of it,) the question is, are the damages excessive ?
If so, the court should have sustained the motion for a new trial upon this ground. The right to grant new trials on account of excessive damages in actions of slander is denied by none of the authorities I have been able to examine. Says a distinguished judge in reference to this subject: “It would indeed be a reproach to the law if this power did not exist, and it is clearly recognized in many adjudications. There is probably no class of cases where a jury are more liable to improper excitement, and to be controlled by impulse rather than by sober and unimpassioned judgment than in slander, and if the power to grant new trials in this action is never to be exercised, it would not unfroquently be employed as an instrument of rank injustice and ruinous oppression.”
But the authorities are uniform- on the point that the verdict should not be set aside unless the amount of damages is so extravagant as to show that the jury acted corruptly or under the influence of passion, partiality or prejudice. We appreciate the force and justice of this rule, and while wo adhere to it, its application to this case in our opinion, requires of us to reverse the judgment below, and direct a new trial to be granted. We are reluctant to interfere with the verdict of a jury in any case, and the more so on this occasion from the fact that this was the second trial had in the case. In such an instance the rule referred to should be adhered to with great tenacity. But when it is considered that the plaintiff was married during the pendency of the suit, thus rebutting the idea that her character had been materially injured — that there was some evidence through it may have been slight to show that the plaintiff had and kept in her family at least two lewd women, and that this was known among the neighbors and to defendant before the speaking of the words, we think the verdict for $2,000 is evidence that it was the result of some unaccountable prejudice, and that we ought not to sustain it. It may have been a case for exemplary damages but we cannot see anything in the evidence which if fairly and impartially weighed by the candid and deliberate judgment of a jury under all the circumstances, would justify them in rendering a verdict for so largo a sum.
The views thus expressed, practically dispose of this case as far as this court is concerned, and yet it may not be amiss to notice some of the other grounds assigned for errar.
It is contended that the court erred in allowing the plaintiff’ to open and close the case both in the offering of testimony and the argument to the jury. "We do not think that the action of the court in this respect is a matter reviewable on error except it may be in extraordinary cases. It will be seen by an examination of section 277 of the Code that the order of a trial may be changed by the court for special reasons, thus making it a matter of discretion.
The counsel for plaintiff' in error also contends that the court erred in charging the jury, that there was no justification for the defendant below as the pleadings stood. We think the court was right. The charge was not, as we understand it, that a party could not justify himself in an action for slanderous words by proving the truth thereof, but that under the pleadings in this case the truth of the matter pleaded would be no justification for the.defendant but would only go in mitigation of damages. The form of the defendant’s plea was that of justification but the matter of it was. not. Hence there was no error in this.
It does not appear that the first question raised in the brief for plaintiff in error' was passed upon or even mentioned on the trial below. We do not therefore feel called upon to consider it. It may be regarded as outside the case.
The objections in regard to the admission of certain depositions will not be likely to arise in this case again, and may be passed over.
The judgment of the court below will be reversed and the cause remanded, with instructions to sustain the motion for a new trial.
All the justices concurring.
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The opinion of the court was delivered by
HoktoN, C. J.:
In the summer and fall of 1878, Warden & Walker were bankers and brokers at Irving, Kansas, and F. P. Halsey owned an elevator in Atchison, Kansas. During the same time, M. R. Conley was engaged in the grain business at Irving, shipping to F. P. Halsey his purchases by the Central Branch Union Pacific railroad company, which issued bills of lading on his shipments. For about six months before the date of the transactions hereinafter stated, Conley had been accustomed to draw drafts upon Halsey in favor of Warden & Walker against his shipments to the former, at the samé time transferring to them the bills of lading received by him on account of the shipments. These drafts had always been paid, without objection. No notice had been given to Warden & Walker of any different or other contract or arrangement between the parties. Under this state of facts, on August 31st and September 3d, 1878, Conley shipped by the Central Branch railroad to Halsey at Atchison, 184,000 pounds of corn, 23,000 pounds of barley, 23,000'pounds of wheat, and received three separate bills of lading. With the shipments, he drew two drafts on Halsey, payable to the order of Warden & Walker; one for .$875, and the other for $215. Warden & Walker advanced said sums, taking as security the three bills of lading issued by the railroad company covering the shipments. The bills of lading were transferred to Warden & Walker before Halsey had actually received into his possession the grain from the railroad company at Atchison, and the moneys advanced to Conley by Warden & Walker were for the purpose of buying the identical grain embraced in the bills of lading, and so used by Conley. In due time, Halsey received the grain and realized from it $854.66. The drafts and bills of lading, pinned together, were seasonably presented to him, but he refused to pay the drafts, upon the excuse that Conley was owing him on general account. Conley had previously drawn drafts of $894.68 in excess of his "accounts, but these drafts were not drawn for value of the special shipments of August 31st and September 3d. The drafts dishonored by Halsey were protested for non-accept-. anee. On December 6th, 1878, Warden & Walker filed their petition to recover of Halsey. On the trial, Conley testified, among other things, as follows:
“Q. You say you commenced the grain business with Halsey in October, 1877? A. About that time. I am not positive as to date.
“Q,. You carried on your business by making shipments to him and drawing drafts through Warden & Walker’s bank for the amount of sales? A. Yes, sir.
“Q,. That is the way you did your business? A. Yes, sir.
“ Q,. Was that your invariable rule in your business with him ? A. I never made a shipment without drawing on him.
“ Q. How did you determine the amount of the proceeds to draw against? A. By my weights loaded in the cars.
“Q,. Then you knew how much a bushel you were to get in Atchison? A. Not always.
“Q,. In the shipments you made to Halsey in August, . 1878, did you know how much you were to get a bushel in Atchison? A. On corn, I did.
“Q,. You had a special contract with him by which the corn was sold to him at a fixed price per bushel? A. Yes; I sold him some corn at a certain price, to be delivered at a certain time.
“Q. You had contracted corn to him at a certain price per bushel? A. I had.
“Q,. Was this corn put on the track at Irving, as expressed by these bills, under that contract? A. Yes, sir; the corn was.
“Q,. Had you previously during the month of August, 1878, put other corn on track under the same circumstances? A. I think about the 15th of August I commenced delivering corn under this contract.
• “Q,. There had been previous contracts before? A. Yes, in the spring.
“Q,. But the special contract for the corn contained in these shipments after the 15th of August was, I understand, under the contract of about the 15th of August? A. I don’t understand what special contract you mean ?
“Q,. The corn you shipped about the 15th of August to Halsey was under special contract? A. It was the same as all previous contracts.
“Q. Under the contract you were to put the corn on the track for him at Irving station? A. No, sir, I think not, My understanding of the contract was, I was to deliver Mr. Halsey a certain amount of corn on the track at Atchison, subject to Atchison weights and inspection, at a certain price, and this was part of that contract.
“Q. When did you put the corn on the track for him? A. I loaded it on the cars at Irving.
“Q,. Who paid the freight on the corn? A. That was paid at Atchison; Mr. Halsey paid that.
“Q,. At that time was there any means of weighing corn at Irving? A. No, sir.”
Halsey testified:
“Q. State what time you first had a business connection with M. R. Conley, the grain-man at Irving? A. October 31, 1877.
“Q. Do you recollect the circumstances of the contract with him for the shipment of corn or other grain in August, 1878? A. Ido.
“Q,. State what that contract was: whether for the shipment- of corn, bulk wheat and barley; whether all together, ■or in what shape it was, and under what circumstances, and where the grain was delivered to you under it? A. I suppose that the grain in dispute is in this shipment; the contract was made'for the corn in it on the 12th of August, for -5,000 bushels at twenty-seven cents per bushel; the corn to be delivered in August at Irving, to grade number two corn, subject to Atchison weights and inspection.
“Q,. Was it changed in any respect afterward? A. I extended the time afterward to run into September.
“Q,. Was the contract changed about the 5,000 bushels of •corn otherwise than the extension of time? A. That was all.
“Q. State now under what circumstances of the contract - the corn mentioned in these bills of lading was delivered to you? A. The corn was delivered to me at Irving at different times; some of it was delivered to me before this time on the ■contract; the original contract was all to be delivered to me .at Irving, in August.
■ “Q,. Where was the corn to be delivered to you? A. Irving, Kansas.
“Q,. Now state how it was as to the bulk wheat? A. The ■bulk wheat was, I think, contracted about the 20th; I am-not positive in regard to date. There were some telegrams passed between us in regard to it, and some letters. I am in ■the habit of purchasing — in fact, all my grain was purchased .as this was.
“Q,. State the fact, when it was and at what figure? A. I think it was sixty for number three, seventy or seventy-one for number two, and forty-five no grade.
“Q,. Where to be delivered? A. Irving, Atchison weights .and inspection.
“Q. State how it was about the barley? A. In regard to the barley, I don’t recollect the price agreed upon; I know when it came in; it was a lower grade of barley than I supposed when I purchased it.”
The jury answered various questions of fact, and returned a verdict for Warden & Walker of $904.50. The court remitted $266.03 of the amount, and entered judgment for •$638.47. Halsey brings the case here. .
His counsel contends that no cause of action is stated in the petition; that the verdict is against the evidence; that the charge of the court was erroneous — all of this upon the-theory that the bills of lading show upon their face the shipments were «made for the benefit of Halsey, the consignee;, that any transfer of the bills of lading made by Conley was-merely the assignment of his interest in the grain; that such interest was limited to the balance, if any, due him on general account; that the rights of the parties were such as they would have been had Halsey stood at the Irving station when the grain was placed upon the track, and then and there had' taken manual possession of it, and entered on his account book a credit to Conley for its value. We cannot agree with all that counsel asserts, a»d think he mistakes the rules of' construction adopted by the courts in ascertaining the real intentions of the parties in like transactions. The rule is, that as betwee.n the owner and shipper of the goods and the carrier, the bill of lading fixes and determines the duty of the-latter as to the person to whom it is (at the time) the pleasure of the former that the goods shall be delivered; but there is nothing final or irrevocable in its nature. The owner-of the goods may change his purpose, at any rate before the-delivery of the goods themselves or of the bill of lading to-the party named, and may order the delivery to some other person than the consignee. The bill of lading is open to explanation by parol. It may be shown to have been intended as-evidence of an absolute sale, a trust, a mortgage, a pledge, a lien, or a mere agency; and when the bill of lading has not been delivered to the consignee, and there has been no actual delivery to him of the property, the right of transfer of the-goods by the general owner by transferring the bill of lading to another is unquestioned. (Bank v. Jones, 4 N. Y. 497; Conrad v. Atlantic Ins. Co., 1 Pet. 444; Mitchell v. Ede, 11 Ad. & E. 888.)
The authorities also concur that a consignor, being the owner, may create a lien on the property shipped before delivery to the consignee, by drawing drafts against the shipment on the consignee and securing the same by the transfer of the shipping bill, and that the consignee has no right to- disregard it. “The rule seems to be a salutary one, and one in fact without which the commercial business of the country could hardly be transacted. The crops of the west could scarcely be moved if this well-established business rule were now to be overturned, as every man at all familiar with affairs knows that the usual course of shipments and business transactions of this country is, that banks make advances on drafts drawn upon bills of lading or shipping bills of essentially the character of the ones before us.” (Lee v. Bowen, 5 Biss. 154.)
In the case at bar, the grain had been bought with the money advanced by Warden & Walker. Conley was the owner of it before shipment. Notwithstanding his contract, he had full authority to sell to Warden & Walker, or to any other buyer, at Irving, or Atchison, or elsewhere. As no bill of lading was delivered to Halsey except as presented with the drafts attached, it is clearly evident that Conley’s intention was to consign the grain to him only upon the condition of his accepting the drafts drawn against it. Therefore, he acquired no lien on the grain for the balance of his general account against Conley. The latter did-not ship the grain to-be applied upon his debts, and Halsey stands in the same relation to the property and parties as if he had been at Irving when the grain was being shipped, and been notified that such grain was not to be paid for by a credit on general account, but that he could only take the same by applying the proceeds toward the payment of the drafts of Warden & Walker.
Counsel seems to think that because these shipments were a part of. a series of shipments to Halsey by Conley, and/ because Halsey was the purchaser' of the grain at a contract price, the rules usually applicable to consignments of grain to a factor ought not to apply. Counsel overlooks the special findings. By the course of business adopted between Halsey and Conley for several months with Warden & Walker, Halsey had, to some extent, authorized Conley to draw drafts upon him for each shipment of grain. These drafts had always been paid by him, and before dishonoring like drafts, he ought to have notified Warden & Walker that the account of Conley was overdrawn and future drafts would not be accepted. In our opinion, the fact that the previous transactions between all the parties had been conducted in the same way as the transfer of the bills of lading and the negotiations of the drafts in this case, greatly strengthens our conclusions in favor of the rightfulness of the judgment. (Savings Bank v. A. T. & S. F. Rld. Co., 20 Kas. 519; Emery’s Sons v. Bank, 25 Ohio St. 360; Lee v. Bowen, 5 Biss.,supra; Benj. on Sales, §381.)
Some of the instructions requested by counsel for Plalsey ought to have been given, but these only affect the general verdict, and as the special findings of fact clearly establish the right of Warden & Walker to recover, no error prejudicial to the plaintiff in error appears thereon.
As two of the bills of lading were issued upon one day, and transferred to secure one draft, and as the other bill of lading was issued on another day, and transferred to secure an additional draft, only two causes of action existed. These were separately stated and numbered in the petition; therefore the petition was sufficient in form. It was not necessary to denominate the action ex contractu, or tort, nor would it have been proper to do so. The real facts constituting the cause of action should be set forth just as they actually occurred, and to resort to one of the old common counts in a petition is not to state the real facts, but to adopt fictions in pleading which have been expressly abolished by the code.
These conclusions force us to the position that the petition states causes of action; that the verdict after being reduced by the court is supported by sufficient evidence, and that the ■directions to the jury worked no prejudice to the rights of plaintiff in error.
The judgment of the district court will therefore be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
ValeNtine, J.:
This was an action brought by Henry D. Markley and Isaac N. Bair against Sarah B. Reasoner and Stephen H. Reasoner, and others, to recover a judgment upon a promissory note, and to enforce a lien upon certain real estate, which lien was created for the purpose of securing the payment of said note, and was created by an instrument in writing, which is claimed to be in effect a mortgage. Judgment was rendered in the court below in favor of the plaintiffs and against the defendants, who now bring the case to this court.
The defendants below (plaintiffs in error) make three points in this court: First, Th,at the property claimed to have been mortgaged belonged at the time to the government of the United States, and was not subject to be mortgaged; second, that the subject-matter of this action is res adjudieata; third, that the defendants’ set-off for damages should have been allowed in the court below.
The facts of this case are substantially as follows: In 1871, the town site of Osborne City was settled upon and occupied as a town site, under the act of congress of March 2, 1867. (14 U. S. Stat. at Large, 541.) The town site was divided into lots, and T. J. Clark settled upon and occupied the lots claimed to have been mortgaged in this case, which lots'were a part of said town site. On January 28, 1873, Clark and wife executed a warranty deed to Stephen II. Reasoner and Albert E. Saxey for said lots. On August 27,1873, Reasoner and wife executed a warranty deed to Saxey for an undivided half-interest in said lots; and Saxey then executed a warranty deed to Sarah B. Reasoner (the wife of said Stephen H. Reasoner), for the whole of the property. On May 7th, 1874, said Sarah B. Reasoner and Stephen H. Reasoner executed the promissory note sued on in this action. This note was for $230, executed to the plaintiffs, Henry D. Markley and Isaac N. Bair, dated May 7th, 1874, due in twelve months, and drawing interest from date at the rate of ten per cent, per annum. The consideration for this note was goods sold and money lent to the Reasoners. At the same time that this note was executed, and for the purpose of securing the note, the . Reasoners executed a quitclaim deed for the said lots to Mark-ley and Bair, who executed a defeasance back to the Reasoners. The quitclaim deed and defeasance were intended by the parties to be in effect a mortgage to secure the payment of said promissory note; and these instruments, together with the promissory note, are the instruments upon which this action is based. The Reasoners continued in possession of the property. On May 5th, 1875, two days before the note was due, Markley and Bair transferred the no.te by indorsement ' to T. J. Clark, and afterward Clark, instead of commencing an action on the note, or on the note and mortgage, commenced an action against the Reasoners for the recovery of the real estate in controversy. Afterward, and on June 11th, 1875, Markley and Bair executed a quitclaim deed for the said lots to T. J. Clark, and afterward T. J. Clark set up this fact in his ejectment case against the Reasoners, not in an amended petition, nor in a supplemental petition, but in a supplemental reply. On December 11th, 1875, the town site of Osborne City was entered in the U. S. land office by the probate judge of Osborne county; and on February 23d, 1876, the probate judge executed a .deed for the lots in question to T. J. Clark, upon the ground that Clark was an occupant of the property, and that the Reasoners were not occupants thereof. Afterward the action of Clark against the Reasoners was decided adversely to Clark, and judgment was rendered in favor of the Reasoners. On September 26th, 1876, Sarah B. Reasoner commenced an action against Clark to set aside the deed exe cuted by the. probate judge to Clark, and in this action judgment was rendered in favor of Sarah B. Reasoner and against Clark, setting aside the deed. Afterward, and on April 11th, 1878, Clark reassigned said promissory note to Markley and Bair, and also at the same time executed a quitclaim deed for the lots in question to said' Markley and Bair; and on April 16th, 1878, Markley and Bair commenced this action on said promissory note and on the quitclaim deed from the Reasoners to Markley and Bair, treating such quitclaim deed, together with the defeasance connected therewith, as a mortgage. On September 26th, 1879, judgment was rendered, as before stated, in favor of Markley and Bair, and against the Reasoners. The judgment was a personal judgment for the sum of $253; and the mortgaged property was ordered to be sold to satisfy such judgment. The Reasoners now bring the case to this court.
I. The first point made by the plaintiffs in error, defendants below1, that the title to the mortgaged property was in the United States at the time it was mortgaged, and therefore that the mortgage is void, is not tenable. (Fessler v. Haas, 19 Kas. 216; Rathbone v. Sterling, ante, p. 444.) A settler and occupant upon a piece of land, settled upon and occupied as a town site under the said act of congress, has rights in and to the property although the title may still be in the United States. But the plaintiffs in error do not press this point. They seem themselves to consider that the point is not Avell taken,\and we shall pass to the next point.
II. JWe think that the point that the subject-matter of this action is res adjudicata, is just as untenable as the first point made by the plaintiffs in error. It does not come within the rule enunciated in the case of the A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 Kas. 127. The first action was for the recovery of real estate; the second action was to set aside a deed, and to declare the title to the property in Mrs. Reasoner; while this action is for the recovery of money on a promissory note, and to foreclose a mortgage; and the plaintiffs in this action were not parties to either one of the other suits. The other suits were, in all probability, decided correctly; but whether they were or not makes no difference in this case. But viewing those two cases from Clark’s standpoint, it would seem that the Reasoners have been fortunate — that is, they have obtained from Clark the property upon which he settled and which he once occupied, and which belonged to him as against all persons except the United States, without ever paying him the consideration therefor which they agreed to pay to him. Clark in his ejectment suit did not base his claim to. the property solely upon this note and mortgage; he also had óther claims to the property, and evidently procured this note and mortgage for the purpose of bolstering up his other claims; but the note and mortgage did not and could not help him. A simple note and mortgage can never furnish any basis for a cause of action in ejectment. We shall assume that the Reasoners have had the title to the property from the time they first purchased it from Clark and Saxey up to the present time;-and by this assumption we virtually say that the first two causes were decided correctly; but such assumption does not at all interfere with the plaintiffs’ right in this case to recover upon the note and mortgage. That a mortgage gives no title to property, has been settled repeatedly in this court; and that a deed made by a probate judge in cases of this kind cannot destroy preexisting rights, has also been settled in this court. (Rathbone v. Sterling, supra.)
III. The third point made by the plaintiffs in error is also untenable. They claim damages by way of set-off or counter-claim, for expenses'incurred in defending said ejectment suit, and in prosecuting said suit to set aside the deed from the probate judge; and these expenses are principally attorney’s fees. Now, as we have before stated, the plaintiffs in this action were not parties to either of the said suits; but if they had been, it is not pretended that either of said suits was so malicious or devoid of probable cause as to furnish the basis for an action for malicious prosecution. But in the second suit th'e plaintiffs in error were themselves the plain tiffs. Besides, the plaintiffs in error never tendered the amount due on said promissory note. Possibly, however, Markley and Bair and Clark rendered it unnecessary for them to make any formal tender of the amount. But still they did not tender it; and if they had done so, they have not kept their tender good. They have in this very action attempted in various ways to defeat the plaintiffs’ action on the promissory note; and have shown by unmistakable evidence that they are and have been wholly unwilling to pay any sum whatever upon the note or mortgage. They have completely, by their action in this case, destroyed all benefit that they might or could reasonably hope to receive from any supposed or alleged tender that they might at any time have made. The Reasoners are very fortunate in this branch of the case, as well as in the other. They have had the use of the plaintiffs’ money for several years; and the court below by its judgment allowed them the use of the money for over five years without any interest thereon. This was another piece of good-fortune for the Reasoners, although Markley and Bair may possibly think that it was not quite fair to them.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
"ValentiNE, J.:
This action was brought by Jesse Ewing against S. L. Fullenwider, to recover damages for defendant’s alleged criminal conversation with plaintiff’s wife. A verdict was returned and judgment rendered in the district court for the plaintiff for $1,000. The defendant then brought the case to this court for review.
The plaintiff in error alleges in this court that the district court erred, first, in the instructions given to the jury on the trial; second, in refusing to give the instructions asked by him; third, in overruling his motion for a new trial; fourth, that the evidence does not sustain the verdict.
We shall examine these allegations or claims of the plaintiff' in error in their order.
I. The charge given by the court below to the jury was ■oral, neither party asking that the instructions should be given in writing, and the record brought to this court does not purport to give anything more than the substance of the charge. It appears however from the record as brought to this court, that the charge contained numerous particulars and various propositions of law. To this charge the defendant took only one exception, and that exception was in the following words, to wit: “To which charge the defendant excepted.” This exception is clearly not sufficient. (K. P. Rly. Co. v. Nichols, 9 Kas. 236; Sumner v. Blair, 9 Kas. 521; City of Atchison v. King, 9 Kas. 551; Ferguson v. Graves, 12 Kas. 39; Wheeler v. Joy, 15 Kas. 389.) The charge was correct in its general scope, and was reasonably correct in all its particulars. The only criticism to which it may be subject is, that it gives too great prominence to a certain matter which has but little to do with the merits of the case. Even if the exception had been sufficient, we could not reverse the judgment because of any material or substantial error in the charge. But the exception was not sufficient. Hence we pass to the next question.
II. The defendant requested the court below to charge the jury “that they were the exclusive judges of all questions of fact,” and “ that the burden of proof was upon the plaintiff to maintain the issues upon his side by a preponderance of the proof.” The court refused to give these instructions. They were certainly proper instructions in the case, and should have been given, unless the court substantially gave them in other instructions. We think, however, the court did substantially give them in its general charge, and therefore that it did not commit any material error in refusing them. It must be remembered also that only the substance of the general charge has been brought to this court; and it even takes a very liberal construction of the record to say that it affirmatively shows that even the substance of all the charge or of all the instructions of the court below to the jury has been brought jto this court. But supposing that all the charge and all the instructions have in substance been brought to this court, still we cannot say that the court below committed material error.
III. Assuming that there was sufficient evidence to sustain the verdict of the jury, we would then say that the court below certainly did not err in overruling the defendant’s motion for a new trial.
IV. And we think there was clearly sufficient evidence to sustain the verdict. Either the defendant had carnal connection with the plaintiff’s wife, or Laura J. Ewing committed willful and corrupt perjury; and we cannot say from the evidence, and against the verdict of the jury, that she committed perjury, or even that she was mistaken. And it does not appear that the defendant denied having sexual intercourse with the plaintiff’s wife when he was charged with it by the defendant’s wife herself, in the presence of justice Everline.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This is a proceeding in habeas corpus, brought by Frank B. Bort, the father of Edith M. Bort and Fred. Bort, against Medora E. Bort, the mother, for the possession of these children. At the time of the commencement of this proceeding the children lacked a few weeks of being, respectively, four and five years old. The parents were divorced by a decree of the circuit court of Sauk county, Wisconsin, on January 26, 1881. This decree awarded the custody of the children to the father, and upon this decree plaintiff mainly relies. The petition in said action was filed April 17, 1880, by Mrs. Bort. At that time both parties resided within the jurisdiction of said court. Defendant filed a cross-petition in that action. Soon after commencing her action, Mrs. Bort took her children and came to Leavenworth to live with her parents, where she has ever since resided. In October, 1880, she dismissed her suit in Sauk county, but the case went on to trial upon the cross-petition, and upon that a decree was entered in favor of defendant, giving him a divorce for the fault of plaintiff, and also the custody of the children.
The petitioner invokes the benefit of that clause of the federal constitution which provides that full faith and credit shall be given in each state to the judicial proceedings of every other state, and insists that that decree concludes the question as to the rights of the respective parents at its date, and that, unless some subsequent change in the relative position and Hines's of the respective parties is shown, the custody must be given to the father. This claim seems to rest on the assumption that the parents have some property rights in the possession of their children, and is very justly repudiated by the courts of Massachusetts. (2 Bishop on Marriage and Divorce, 5 ed., p. 204.)
We do not, however, propose to place our disposition of this case upon the decision of any such question as that. We shall concede that, as between the .parents, that decision is a finality, and still we do not feel warranted in sustaining the petition of the plaintiff.
We understand the law to be, when the custody of children is the question, that the best interest of the children is the ’¡paramount fact. Rights of father and mother sink into insignificance before that. Even when father and mother are living together, a court has the power, if the best interests of ¡the child require it, to take it away from both parents and jcommit the custody to a third person. In other words, a court of chancery stands as a guardian of all children, and may interfere at any time and in any way to protect and advance their welfare and interests. Now in a divorce suit the court is limited to the question: Which of the two parents is the better custodian of the children? The decision only determines v the rights of the parties inter sese. But in this proceeding the question is, What do the best interests of the children require? Shall they be given to either party? or shall the court place the custody with some other person? Now the petitioner and respondent, or plaintiff and defendant, in this proceeding, the parents of these children, late husband and wife, have filed in this court most bitter and malignant charges against each other. We have examined the testimony adduced in support of these charges, and are glad to know that neither is as bad as the other would have us believe. It is sad to see two, who but so recently were joined in the holiest of unions, and who pledged to each other a love and faith even unto death, now searching for epithet and charge to blacken each other’s good name, and to pass down to their little ones an inheritance of dishonor. When the fury of present anger shall have spent its force, and calmer hours come, justice and generosity, we can but believe, will resume their sway, and bitterly will each regret the useless and untruthful charges against the other.
But the question for our decision is, what do the best interests of the children require ? The petitioner is a traveling salesman, away from home a large part of his time. While away, the children would necessarily have to be under the care of his mother —a woman past middle age — or such hired help as he might secure. On the other hand, Mrs. Bort is now living with her parents, Mr. and Mrs. D. W. Powers, reputable citizens of Leavenworth. They have an elegant home a few miles from the city, and have expressed their desire to have the care and custody of their little grandchildren. Besides these, an unmarried sister and a brother of Mrs. Bort constitute the household. All seem to have the warmest affection for these children. We see no reason to doubt that Mrs. Bort is a loving mother, devoted and faithful to her little ones. Her conduct since she left her husband, and since the divorce, seems to have been without reproach. Whatever may be her faults, it is evident that these children will receive only the kindest care if left in their present home. They are of that tender age when they need a mother’s care. No stranger, however kind, can fill her place. We may not ignore these universal laws of our nature, and they compel us to place these children where they will be within the reach of a mother’s love and care. At the same time, it would be unjust to have the minds of these children poisoned against their father. He is industrious, energetic, a good salesman, traveling for a reputable house in Chicago, a house which appreciates and has confidence in him. He has a father’s love for these little ones, and desires their best welfare. He would not have them alienated from him, and they ought not to be. Without discussing the situation further, the order which will 'be made is as follows:
The children will be committed to the care and custody of Mrs. Powers, their grandmother, upon her giving a bond to the state of Kansas in the sum of three thousand dollars, with two sufficient sureties, to be approved by the clerk of this court, conditioned that she will keep the children within the jurisdiction of this court, and will produce them in court whenever so required.
Whenever the father desires, he shall, upon giving twenty-four hours notice to Mrs. Powers, be permitted to visit his children at the house of Mrs. Powers, going there alone to be with them there alone; he must be received without insult or injury; he will also be permitted to have the company of his children away from the house of Mrs. Powers at any place within the county of Leavenworth he may desire, to take them out riding or driving within the limits of such county, providing he' first give bond to the state of Kansas in the sum of five thousand dollars, with two sufficient sureties, to be approved by the clerk of this court, conditioned that he will not take or permit them to be taken outside the county of Leavenworth, and that he will return them to the house of Mrs. Powers during the day-time of the same day upon which they were taken therefrom.
Each party.must pay the costs of his or her own depositions. The other costs will be taxed against the petitioner. The case will be continued in this court for such further orders and disposition as the best interests of the children shall require.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a note and a mortgage, brought by Richard J. Levis, against Serena J. Jenkins and Edward Jenkins. The note and mortgage appeared upon their faces to have been executed by both of the defendants, and the plaintiff's petition alleged that they were in fact so executed. A trial was had, and judgment was rendered on March 13, 1879, in favor of the plaintiff and against both of defendants, for the amount of the note and mortgage, with interest, attorney's fees and costs. The defendant Serena J. Jenkins then brought the case to the supreme court on petition in error, where the judgment of the trial court was reversed as to her, and the cause remanded for a new trial upon the sole ground that the court below erred in refusing to charge the jury in writing. (Jenkins v. Levis, 23 Kas. 255.) The judgment in favor of Levis and against Edward Jenkins has never been disturbed. When the case was returned to the district court, the defendant Serena. J. Jenkins filed an amended answer, to which the plaintiff replied, and the case was again tried before the court and a jury upon the petition of the plaintiff, the amended answer of the defendant Serena J. Jenkins, and the reply of the plaintiff. The trial was had solely between the plaintiff Levis and the defendant Serena J. Jenkins. The amended answer of the defendant put in issue the execution by Serena J. Jenkins of both the note and the mortgage, and also set up the plea of usury. These were the only questions of fact to be tried in the case. The plaintiff proved that the defendant Serena J. Jenkins executed the note and mortgage and" acknowledged the execution of the mortgage in the law office of A. L. Redden, at Eldorado, Kansas. The defendant Serena J. Jenkins was afterward introduced as a witness on her own behalf, and she testified that she was at the law office of A. L. Redden at the time that it is claimed that the noté and mortgage were executed; but she further testified that she did not execute the same. She testified that she left Redden's office and went to the house of Mrs. Mickel, and that she there told Mrs. Mickel what she had done and what she had not done at Redden’s office; and that she did not return to Redden’s office. She then offered to prove what she had told Mrs. Mickel, but the plaintiff ob jected, .and the court below refused to permit the evidence to be introduced. This is the first ruling of the court below assigned for error in this court. She claims that this conversation was a part of the transactions had in Redden’s office, and therefore a part of the res gestee. Evidently, however, this conversation was no part of the res gestee. (The State v. Montgomery, 8 Kas. 351, 360, 361; Swenson v. Aultman, 14 Kas. 275, 276; The State v. Pomeroy, ante, p. 349.) The court below did not err in refusing to permit such evidence to be introduced.
The defendant, Serena J. Jenkins, then introduced her husband, Edward Jenkins, as a witness to testify in her behalf. He testified that Mrs. Jenkins did not execute or acknowledge the mortgage; and that he signed her name to the mortgage without her knowledge or consent. Mrs. Jenkins then offered to prove, by her husband, that she did not execute the note, but that he signed her name to it also, without her knowledge or consent. The plaintiff.objected to this evidence upon the ground that her husband was not a competent witness to testify to such a thing; and the court below sustained the objection. This is the second ruling of the court below assigned for error. This is a much more difficult question than the other. The statute provides that a husband and wife may testify for . or against each other, “when they are joint parties, and have a joint interest in the action.” (Civil Code, § 323, subdiv. 3.) The question then arises: Were Mrs. Jenkins' and her husband “joint parties” to the action, and had they a “joint interest” therein? While the question is somewhat difficult, yet we hardly think that it can be answered in the affirmative, but we are inclined to think that it must be answered in the negative. It is true that they were at one time joint parties to the action, but the action as against the husband had previously been terminated by a judgment rendered against him, and this judgment terminated the joint interest of Jenkins and wife, as joint parties to the action. The judgment to be rendered against the wife on the note could not be enforced against, the husband, but could be enforced only as against her. At the time of the trial .when this evidence was offered to be introduced, the action then stood with regard to the introduction of this evidence just the same as though the action had been commenced against Mrs. Jenkins alone, upon the note alone, and in such a case it would hardly seem that the-husband would be a competent witness for his wife. We think that the court below did not err in excluding this evidence. But even if the court had permitted the evidence to- ■ be introduced, it would have made no difference with the verdict. As before stated, Jenkins testified that Mrs. Jenkins did not execute or acknowledge the mortgage, but that he signed her name to it, without her knowledge or consent;, but the jury did not believe him. They found expressly that she did execute and acknowledge the mortgage, and therefore if the court below had permitted Jenkins to testify that his wife did not execute the note, but that he sigued her name to it, the jury would evidently have given no more credit to this testimony than they did to the other testimony of Jenkins. They evidently would have found, notwithstanding such evidence, that Mrs. Jenkins did execute the note.
It appears from the evidence that some years ago A. W. Ellet loaned money belonging to his brother, Dr. Ellet, to Edward Jenkins. , For the purposes of this case, we shall assume that usurious interest was charged; for, although there was no evidence showing this fact, yet Mrs. Jenkins offered to prove that such' was the fact. The court below excluded the evidence; and this is the third ruling of the court below assigned for error. It appears from the evidence that on December 11, 1874, the time when the note and mortgage were executed in Redden's office, the amount due from Edward Jenkins to Dr. Ellet amounted to something over $1,400. It was agreed, however, between the parties — A. W. Ellet, as agent for Dr. Ellet, and Edward Jenkins and Serena J. Jenkins — that the amount due to Dr. Ellet should be considered as just $1,400, and that a note and mortgage should be given to the plaintiff, Richard J. Levis, for just that amount, in payment of the debt to Dr. Ellet; and this was done. A. W. Ellet acted as the agent both for Dr. Ellet and for the plaintiff, Levis. Levis himself was not present, and personally did not know anything concerning the transactions. But for the purposes of the case we shall assume that he had full knowledge of all the transactions; that is, we shall assume that usurious interest was charged by Dr. Ellet, and that it constituted a portion of the $1,400 due from Jenkins to him, and that Levis was fully aware of this fact. Still, under the circumstances, we think that the fact that usurious interest was included in said $1,400 due to Dr. Ellet is entirely immaterial in this case. The evidence shows that the plaintiff furnished precisely $1,400 for the note and mortgage executed to him; that it was paid to A. W. Ellet; and that A. W. Ellet paid it to Dr. Ellet, with the consent and for the benefit of Edward Jenkins, and in satisfaction of the debt due from him to Dr. Ellet. Levis did not charge any usurious interest on the note and mortgage executed to him, nor did he get the benefit of any usurious interest, and the fact that Jenkins paid Dr. Ellet usurious interest cannot affect his rights. It made no difference to him what Jenkins did with the money. If Jenkins had even given it away, with the full knowledge and consent of Levis, still Levis could recover.
The defendant also claims that the court below erred in refusing to give to the jury a certain instruction asked for by her. There was no evidence, however, upon which to base the instruction, and therefore we think the court below ruled correctly in refusing to give the instruction.
We perceive no error in the rulings of the court below, and therefore its judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
HortoN, C. J.:
The plaintiff in error commenced proceedings to condemn the right of way through the land of the defendant in error, who was the owner of the northwest quarter of section seventeen, township twenty-three, range eleven, with the quarter-section lying immediately east thereof, and the whole section lying north, all in Greenwood county, and embracing 960 acres. All of this was used for the purposes of a stock ranch. The railroad ran nearly diagonally through the northwest quarter of section seventeen, but did not touch the adjoining lands. The water and timber of the ranch, as also the house and corrals, were cut off by the railroad from the main body of the land. A regularly laid out public highway separated the whole section from the land upon which the railroad was located. The amount assessed by the commissioners in favor of Merrill, on account of the taking and injury to the northwest quarter of section seventeen, was $209. Merrill took an appeal from the award, and subsequently filed his petition claiming damages to the whole land used by him for stock purposes. On the trial, the jury gave a verdict for $734, and judgment was entered accordingly.
Counsel for plaintiff in error claim that the legislature fixed limits to the powers delegated to the commissioners by confining their inquiries to the particular “quarter-section of •other lot of land ” through which the proposed road was to be built, and .by the use of the words, “other lot of land,” intended a less subdivision or piece of land than a quarter-section, and such counsel therefore conclude that the evidence in this ease was incompetent, the instructions erroneous, and the verdict unsupported, because the trial court held that Merrill was entitled to compensation for the injury to the whole ranch, and not merely for that to the separate quarter ■over which the railroad was built. The limitation of “lot of land” to a legal subdivision or fractional portion of a quarter-section, or a small subdivision of a platted town site, is not the true interpretation of the statute. Such limitation is too restricted. Such definition is too narrow. In the gen•eral acceptance of the words, a “lot of land,” is the separate portion belong to one person: according to Webster, “that portion of ground which is allotted or assigued to any one; and hence, any distinct portion of land.” The “ lot of land ” may be less or\greater than a quarter-section; therefore, within the meaning of the statute, a farm of 800 acres in one body, ■owned by one person, or a ranch of 960 acres in a body, owned by one person, and used for' stock purposes, is a “lot of land.”
The location of the public highway over the body of latid -would not affect the right to recover damages for all the property, unless such highway would prevent the land lying on both sides from being one ranch for stock purposes. The evidence shows that the land was all used together. (A. T. & S. F. Rld. Co. v. Blackshire, 10 Kas. 477; St. Paul & Sioux City Rld. Co. v. Murphy, 19 Minn. 500; Welch v. M. & St. Paul Rld. Co., 27 Wis. 108.) This conclusion disposes of the principal question.
One other matter remains. The court attempted to authorize the collection of the damages by execution against the ■railroad company. This cannot be done. The judgment, in •such a case, should be in the nature of an award of damages, -as is made by the condemnation commissioners. (St. L. L. & D. Rld. Co. v. Wilder, 17 Kas. 239; L. & T. Rly. Co. v. Moore, 24 Kas. 323, 328.)
The case will be remanded to the court below, with the order that the judgment be modified in accordance with the-views expressed herein. The costs in this court will be divided.
All the Justices coneurriug.
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Per Curiam:
In this case the members of this court do not agree upon the questions involved, and as any decision of those questions seems to be no longer of pressing necessity, it is not deemed best- to give any expression to the different opinions held by the individual justices.
The order which will be entered is, the affirmance of the ruling of the district judge.
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The opinion of the court was delivered by
YaleNTINE, J.:
This was an action brought by the Union Trust company of New York, trustee of the Missouri, Kansas & Texas railway company, against W. H. Braden, as sheriff of Crawford county, Kansas, to perpetually enjoin the collection of a certain tax, claimed by the plaintiff to be illegal. The court below decided in favor of the plaintiff, and rendered judgment accordingly; and the defendant now, as plaintiff in error, brings the case to this court.
The facts of the case are substantially as follows: In 1877, the plaintiff below was liable to pay all legal taxes assessed against the Missouri, Kansas & Texas railway company. A portion of the railroad of this railway company is situated in and runs through Crawford county. In 1877, the state board of railroad assessors, at its April session, assessed the property of the plaintiff below, as provided by § 27 of the tax law of 1876. (Comp. Laws of 1879, p. 944.) Afterward, and before the 20th day of May, 1877, said board, through the auditor of state, among other things made returns of the railroad assessments to the county clerk of Crawford county, as provided by § 33 and subsequent sections of the said tax law of 1876. (Comp. Laws 1879, p. 945.) The board also performed all other acts enjoined upon it by law. As soon as the county clerk of Crawford county received the railroad assessment, he distributed the same and certified it to the various school districts, townships, etc., as required by § 38 of the said tax law. (Comp. Laws 1879, p. 946.) Afterward, in the month of July, 1877, the state board of equalization, then being in session, increased the valuation and assessment of the M. K. & T. Rly. property situated in Crawford county, above the amount fixed by the board of railroad assessors, 12 per cent.; and afterward the auditor of state reported such increase to the county clerk of Crawford county, who added the same to the valuation already fixed; and upon this increased amount based the per cent, of levy of taxes for different purposes for that year, and placed the same on the tax roll of the county, as provided by law. The tax arising from this increased valuation amounted in the aggregate to $326.06. The plaintiff below at the proper time paid all taxes assessed against it, or against the M. K. & T. Rly. Co., except this amount of $326.06, and this is .the tax which the plaintiff now wishes to enjoin.
These are the main facts in the case, and it is agreed by. counsel that the substantial question arising from these facts is, whether the state board of equalization had the power to make said increased valuation of the property of the M. K. & T. Rly. Co. or not. We- think it had. It would seem that if the board of assessors should make a mistake in the assessment of any property, or if any portion of the assessment were higher or lower than the average assessment of the other property of the state, there should be some authority somewhere to correct the mistakes of the board of assessors, and to equalize the assessment. There is nothing in the statutes that would seem to prevent the board of equalization from equalizing the assessment as made by all the assessors of the state, including railroad assessors, by increasing or decreasing the valuation of any particular railroad property; but there is much in the statutes that would seem to indicate that the board has such power. The state auditor has in his office the assessment of the state board of assessors, and ab- straets of all other assessments are forwarded to him by the •county clerks of the various counties of the state. (Tax law of 1876, as amended in 1877; Comp. Laws of 1879, p.954, §76.) And abstracts of all the assessments of the state, by whomsoever made, are furnished by the auditor of state to the state board of equalization. (Tax law of 1876, §79; Comp. Laws 1879, p.955.) And upon these abstracts the state board of equalization equalizes all the assessments and valuations of property in the state. Said § 79 of the tax law of 1876, so far as it affects this question, reads as follows:
“Sec. 79. It shall be the duty of said board to assemble at the state capítol on the second Wednesday in July, in the year A. D. eighteen hundred and seventy-six, and of each year thereafter, and when duly organized, as hereinafter provided, to then and there proceed to examine the abstracts of property assessed for taxation in the several counties of the state, including railroad property, which shall be laid before said board by the auditor of state, and shall equalize the same by directing to be added to the amount of property so assessed in each county, or to be deducted therefrom, such rate per cent, as said board may deem equitable; but said board shall not reduce the aggregate amount.”
The board, having before it all assessments for taxation made upon all the taxable property within the state, may, under the provisions of the foregoing section, equalize such assessments by increasing or decreasing the assessments made on any particular portion of the property, provided such equalization does not reduce the aggregate amount of the assessment. Railroad property may be assessed too high or too low, as well as any other property; and it may be assessed at a higher or at a lower rate than the other property of the state is assessed. And to do justice to the railroad companies and to the people of the state, it may be necessary in many cases to increase or diminish the assessments on railroad property. 'The record in the present case shows that the railway of the plaintiff is not situated entirely in Crawford county, but is also situated in other counties; but whether the assessment •upon this railway was increásed for the entire length of the road, or only for that portion of it which is situated in Crawford county, the record does not show. If this should make any difference, however, it will then be presumed that the facts were such as to show that the board of equalization did its duty.
The judgment of the court below will be reversed, and cause remanded with the order that the demurrer to the petition be sustained.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Butler county, Kansas, by John Treon against Thomas White, on a judgment rendered by the court of common pleas of Montgomery county, Ohio. The defendant demurred to the pláintiff’s petition, on the ground that it did not state facts sufficient to constitute a cause of action. The court below overruled the demurrer, and the defendant excepted. The defendant then moved the court for leave to answer; but he did not state in his motion what his defense was,¡nor even that he had any defense. He also filed an affi davit with his motion. The court below overruled the motion, and then rendered judgment in favor of the plaintiff and against the defendant for the amount of the judgment upon which the action was brought. The defendant now brings the case to this court, and asks for a reversal of the judgment of the court below.
The petition in the court below is so obviously sufficient that it is scarcely necessary to say anything with regard thereto. The principal objection urged against it is, that the transcript of the judgment, attached thereto and made a part thereof, was not authenticated as prescribed by the act of congress or by the laws of this state. Now, as an exhibit, it was not necessary that the copy of the judgment should be authenticated at all. The allegations of the petition answered the purpose for the time being of. a due authentication of the judgment. If the judgment had been denied by a pleading verified by an affidavit, and if it had become necessary to prove the judgment, then it would have been necessary that the transcript of the judgment offered in evidence should be properly authenticated.
We do not think that the court below erred in refusing to permit the defendant to file an answer to the plaintiff’s petition. The plaintiff demurred to the petition, when he should have answered. The petition was so obviously sufficient, that the filing of the demurrer furnished -some evidence that it was filed merely for delay, and the defendant made no showing that the demurrer was not filed for delay; he did not even state, in either his motion or affidavit, that it was not filed for delay; and the form of the motion and affidavit would also seem to indicate that the defendant desired delay more than he did to try the case upon its merits. For instance, in one portion of his affidavit he says “no such record,” while in another portion of the affidavit he substantially admits that a judgment such as the plaintiff sued on had been rendered against him. 'The facts of the case seem to be about as follows: Formerly, the defendant, Thomas White, and Lewis Mease and the plaintiff, John Treon, were partners operating a mill. The partners had a difficulty, and Lewis Mease and John Treon commenced an action in the court of common pleas of Montgomery county, Ohio, against Thomas White, for a settlement and an accounting. Two receivers were appointed in the action to take charge of the partnership property, and a master commissioner was appointed to take the testimony in the case. The evidence was taken by the master commissioner, and reported to the court, and judgment was rendered thereon in favor of each of the plaintiffs, and against the defendant, for $10,485.60. This judgment was rendered on August 6, 1877. In the meantime, and afterward, the receivers disposed of the property, made their return to the court, and were finally discharged on June 5, 1879. This present action was commenced in the district court of Butler county, in December, 1879. Said demurrer was overruled on March 2, 1880, and the plaintiff filed his motion and affidavit for leave to answer on March 3, 1880, and up to that time he had taken no steps to reverse, vacate or modify the judgment rendered by "the common pleas court of Montgomery county, Ohio, nor to vacate, modify, set aside or reverse any of the proceedings in the action in which that judgment was rendered. The defendant does not show, by his affidavit or otherwise, that he has any defense to that judgment; he states that it was obtained through fraud, but he states no facts showing that it was obtained through fraud; his principal ground for complaint, stated in plain words, seems to be that Mease and Treon attended to their own side of the case, and did not take care of his side of the case, and that they introduced their own evidence only, and did not introduce evidence on his side. He was personally absent on account of sickness at the time the evidence was taken, and at the time the judgment was rendered. His principal complaint, where he attempts to state facts, is that he “verily believes” that Mease and Treon did not introduce in evidence before the master commissioner a certain “blotter” or “blotters,” containing the credit accounts of himself with the firm during the continuance of their partnership; but he does not state what this blotter or blotters would prove, nor does he show that it would have made the slightest difference if it, or they, had been introduced in evidence, nor does he really show that they were not introduced in evidence; it was only a matter of belief with him. He states that he was unable, from sickness, to attend before the master commissioner while the evidence was being taken, or to attend at the court when the judgment was rendered; evidently, however, he had an attorney present, for it appears that when the judgment was rendered his attorney excepted to the judgment. He also complains that the mill was sold to Mease and Treon for $10,000, when it was worth from $25,000 to .$30,000. If this were really true, he should have appeared before the court of common pleas of Montgomery county, Ohio, and resisted the confirmation of the sale. It does not appear, however, either that he did, or that he did not, but probably he did not. This sale was evidently made long before the judgment was rendered. The defendant White makes no pretense that the sale was not regular in all respects, or at least so far as the receivers were concerned, and no fraud is shown. Evidently the defendant had no defense to said judgment, and therefore for another reason the court ruled correctly in refusing to permit the defendant to file his answer. Section 138 of the civil code reads as follows:
“Upon a demurrer being overruled, the party who demurred may answer or reply if the court be satisfied that he has a meritorious claim or defense, and did not demur for delay.”
Now here the defendant has no meritorious claim or defense, and he certainly did not satisfy the court below that he did not demur for delay.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Thomas Plunkett, administrator of the estate of Peter Plunkett, deceased, against the Atchison, Topeka &' Santa Fé railroad company, for damages alleged to have resulted from the negligence of the defendant in wrongfully causing the death of said Peter Plunkett. The case of the plaintiff (who is now defendant in error), as he alleges it, and as he claims to deduce it from the findings of the jury, is substantially as follows:
On the 28th day of June, 1878, Peter Plunkett was killed by being caught between the timbers loaded on two cars then in the car-yard of the Atchison, Topeka & Santa Fé railroad company, at Atchison, Kansas. At the time of his death, Peter Plunkett was in the employ of the railroad company, as brakeman or yard switchman. At the time he was killed he was in the discharge of his duty as brakeman or yard switchman, and had been in the employment of the railroad company for about five months previous to his death, which was on June 28, 1878. He was killed while attempting to couple two cars in the railroad company’s yard, then loaded with projecting timbers. The yard-master of the railroad company instructed and ordered Plunkett to couple two flat cars that were then improperly and negligently loaded with projecting timbers. Five to eight hours previous to the death of Peter Plunkett, the yard-master had notice of the manner in which said cars were loaded. After the yard-master of the railroad company had knowledge of the manner in which the timbers of said cars were projected, he ordered and instructed Peter Plunkett to couple the same together. In obedience to such order of the yard- master, Peter Plunkett attempted to-make the coupling of said cars, so loaded with projecting timbers. The death of Peter Plunkett was caused by the wrongful act and omission of the railroad company. The railroad company, by the exercise of reasonable and ordinary care on its part, could have prevented the injury complained of. The death of Peter Plunkett was caused by the gross negligence of the railroad company. At the time of the injury complained of, Peter Plunkett was in the exercise of reasonable and ordinary care. At the time of the injury complained of, Peter Plunkett was not guilty of any negligence that proximately contributed thereto. As such brakeman or yard switchman, Peter Plunkett was under the control and direction of said yard-master of the railroad company. As such brakeman and yard switchman, it was in the line of Peter Plunkett’s duty to couple and uncouple cars. The yardmaster of the railroad company ordered and instructed Peter Plunkett to couple said cars just previous to receiving the injury complained of. At the time of the injury complained of, Peter Plunkett was in the exercise of that degree of care that prudent men would ordinarily exercise under like circumstances.
The findings of the jury, if we take their general conclusions, were substantially as claimed by the plaintiff, the defendant in error. Their general verdict, and all or nearly all of their general conclusions, whether of law or fact, were in favor of the plaintiff and against the defendant. And about the only findings of the jury which were favorable to the defendant were those findings which stated the facts in considerable detail. And even those findings which stated the facts in detail were fully as favorable to the plaintiff as the evidence would warrant; and indeed some of them were entirely too favorable. The principal findings of the jury tending to. show liability or non-liability on the part of the defendant, are as follows:
Question 1. Was not Peter Plunkett, at the time of his death, on June 28, 1878, within ten days of being seventeen years old? Answer: Yes.
Q,. 2. Was he not a very stout, active and healthy young man at the time of his death? A. Yes.
Q,. 10. Was not the occupation of Peter Plunkett at the • time of his death a brakeman and yard switchman in the employ of defendant? A. Yes.
Q. 12. Did not Peter Plunkett just before he met his death uncouple two flat cars, loaded with timbers or other material, from the engine and train, and proceed alone, and unaccompanied by any one, with said two ears, the said cars being moved forward by their own gravity, the track being slightly down grade, and having been started by a push from the engine, toward another car loaded with timbers, some distance east of said Plunkett? A. He did — the east car being a flat car, and loaded with timber.
Q,. 13. Was not said Peter Plunkett at the forward end of the said two cars, as they were then going? And if not, where was he? A. Yes; on the forward end of east car.
Q,. 14. Was he not standing by the brake on top of said car, and close by the end of said car, and near to the end of the projecting timbers on said car? A. He was.
Q,. 16. Did not Peter Plunkett, in attempting to make said coupling of said car, bend his knees, depress his body, and bow his head, and assume a squatting position, for the purpose of clearing the projecting ends of the timbers on the cars he was trying to couple when the cars should come together, and while he was making the coupling? A. Yes, he did.
Q,. 17. When the said cars came together, did not the ends of the timbers on the two cars catch his head between them immediately back of the ears, and thereby kill him? A. Yes.
Q,. 18. At the time Peter Plunkett rode down those cars and attempted to make said coupling, was there any obstacle or obstruction to prevent his seeing the car, and its condition, and the manner it was loaded, upon which he rode? If there was, state what the obstacle or obstruction was. A. Yes, it was raining hard at the time.
Q,. 19. Was there any obstacle or obstruction to prevent the said Peter Plunkett from seeing the car toward which he was moving, its condition, and manner of loading? And if there was, state what the obstacle or obstruction was. A. There was no obstacle. Moving toward another car, it is impossible to tell how far timbers project.
Q,. 20. What distance from the place where the said Peter Plunkett took charge of said two moving cars was it to the place where the standing car was, and where he met his death? A. From six to eight car-lengths.
Q. 21. Would the said Peter Plunkett have been injured by the projecting ends of the timbers on said cars, or by anything else, if he had taken the precaution or care to have bent his head low enough to be below the line of said projecting timbers? A. He used ordinary care and precaution.
Q,. 22. Did not Peter Plunkett fail in his attempt to clear his head from the ends of the projecting timbers on said cars, while'trying to make said coupling? A. He did.
Q,. 24. How far over the ends of said cars did the said timbers project? A. The west end of east car, part of the timbers projected two feet; the east end of west car, part of timbers projected from one to twelve inches.
Q,. 26. Were not the cars between which Peter Plunkett was killed received by the defendant from a connecting line •east on the morning of June 28, 1878, then already loaded, and in the same manner that they were at the time hé was killed? A. Yes.
Q,. 28. How long had said cars, loaded as they were, been in the possession of the defendant prior to the time of Peter Plunkett’s death? State the time in hours, as near as you ean. A. From five to eight hours.
Q. 29. Was it not before and at the time of Peter Plunk- •ett’s death a frequent occurrence on the line of defendant’s road to receive and load long railroad iron and timbers on cars with the same projecting over the ends of the cars? A. It was.
Q,. 36. Was it not one of the duties of a yard switchman or brakeman on the line of defendant company’s railroad, at ■the time Peter Plunkett was employed in that capacity by defendant company, to couple together cars loaded with timber, iron and other material projecting over the ends of the cars? A. It was.
Q. 37. Were not flat-cars frequently and ordinarily received by defendant company at its yard in Atchison during the time said Plunkett was so employed, loaded with timber and other material, projecting over the ends of the cars in the same manner as the cars were loaded, which said Plunkett was attempting to couple at the time he met with the accident causing his death ? A. They were not.
Q. 38. Did not Peter Plunkett, prior to the time of his death, during the time of his employment by defendant, make couplings of cars loaded with lumber projecting over the ends of the cars? And if so, how often? And how close did the projecting timbers come together after such coupling had been made? A. We do not know that he made such couplings.
Q,. 41. How long was Peter Plunkett employed in the Atchison yard as yard switchman or brakeman prior to his death? A. About five months.
Q. 42. How long had Peter Plunkett been engaged in working for different railroads prior to his death? A. About five months.
Q,. 43. Did not Peter Plunkett know at the time he attempted to make the coupling of the two cars, when he met with the accident causing his death, the material with which said cars were loaded, and that the same projected over the ends of the cars, so as to make it dangerous to attempt to make the coupling? A. He did.
Q,. 44. Did not Peter Plunkett have opportunity to know, by thé reasonable use of his faculties, the material with which, and the manner in which, the two cars were loaded, which he tried to couple together at the time he met with the accident •causing his death? A. He knew they were loaded with timbers, but lacked sufficient knowledge of how said cars were loaded.
Q,. 45. Did not Peter Plunkett, at the time he attempted to couple together the two cars when he met with the accident, bend his knees, bow his head, and place himself in a stooping position ? And if so, what did he place himself in that position for? A. He did. To make the coupling and to avoid the danger.
Q,. 46. Did not Peter Plunkett, during all the time he was employed by the defendant company, constantly work in the Atchison yard? And was he not at the time employed in making up trains in that yard — coupling and uncoupling cars and turning switches? A. He did. As long as employed as yard switchman.
Q,. 47. Was it not the duty or service for which Peter Plunkett was employed by the defendant company, to work in the Atchison yard, turn switches, couple and uncouple cars and make up trains, whenever it became necessary that such service should be performed in carrying on defendant’s business as a common carrier, and in forwarding the freight and cars consigned to it by other companies to be forwarded or transported over defendant’s line of railroad? A. It was.
The jury further answered, that there was a defect in the load of each of the cars deceased attempted to couple; that it was not the custom of this company to couple such cars with a long draw-bar; and that it is the custom of railroads generally to couple such cars with an ordinary coupling-link, as the plaintiff in this case attempted to do.
In addition to these answers, the jury further found, that the deceased was in the exercise of care, and the company was guilty of gross negligence, as has already been stated. The specific facts were not given, but these were the conclusions as found by them.
The jury also made the following findings:
Q,. 8. Did the yard-master of the defendant, after having knowledge of the manner in which the timbers on said cars projected, order and instruct Peter Plunkett to couple the same together? A. Yes.
Q,. 9. In obedience to the orders of the yard-master, did said Peter Plunkett attempt to make the coupling of said cars so loaded with projecting timbers?. A. Yes.
Q,. 15. As such brakeman or yard switchman was Peter Plunkett under the control and direction of said yard-master of the defendant? A. Yes.
Q. 17. Did the yard-master of defendant order and instruct said Peter Plunkett to couple said cars just previous to Peter Plunkett’s receiving the injury complained of? A. Yes.
The jury also found a general verdict in favor of the plaintiff and against the defendant, and assessed the damage at $1,300, for which amount, with costs, the court below rendered judgment in favor of the plaintiff and against the defendant. The defendant now, as plaintiff in error, brings the case to this court for review.
The defendant (plaintiff in error) now claims that it is not liable to the plaintiff in any amount whatever; and it claims this upon the facts as proved and even as found by the jury. It raised the question of its liability in the court below in various ways: As', by demurring to the plaintiff’s evidence; by moving for judgment in its favor on the findings of the jury; and by moving for a new trial on the ground that the verdict and findings against it were not sustained by sufficient evidence, but were against the evidence. The defendant (as plaintiff in error) also claims that the court below not only erred in overruling these motions, but that it also erred in excluding certain evidence from the jury, and in submitting certain questions to the jury for them to find upon, and in refusing to submit certain other questions to the jury for them to find upon, and in giving certain instructions to the jury, and in refusing to give certain other instructions to the jury. All these questions are now properly and fairly before this court. But the great and paramount question is the first one named, to wit: Is the defendant liable at all, under the unquestioned and undisputed facts of the case?
I. We do not think that the court below erred in excluding said evidence, for, among other reasons, no sufficient foundation was laid for its introduction. There was no evidence introduced tending to show that Peter Plunkett, the deceased, ever had any knowledge of the defendant’s written or printed rules and regulations which the defendant offered to introduce in evidence, and which it claims the deceased wrongfully disregarded. Therefore it was not error to exclude the evidence.
II. We cannot say that the court below committed any material error in submitting to the jury the questions objected to by the defendant; and yet we cannot see how any substantial benefit was to be derivéd from such submission. These questions, or at least the most of them, were very comprehensive in their character, were couched in very general terms, and when answered, they, with their answers, furnished but very little more evidence of the primary and fundamental facts of the case than did the very comprehensive statements of the general verdict itself. The principal of these questions, with the answers thereto as given by the jury, are as follows:
“ Q. 10. Was the death of said Peter Plunkett caused by the wrongful act or omission of the defendant? A. Yes.
“ Q,. 11. Could the defendant, by the exercise of reasonable and ordinary care on its part, have prevented the injury complained of? A. Yes.
“ Q,. 12. Was the death of Peter Plunkett caused by the gross negligence of the defendant? A. Yes.
“ Q,. 13. At the time of the injury complained of, was Peter Plunkett in the exercise of reasonable and ordinary care? A. Yes.
“Q,. 14. At the time of the injury complained of, was Peter Plunkett guilty of any negligence that proximately contributed thereto? A. No.”
There can be no such thing as reaching ultimate facts. And this is true, whether we are attempting in the line of1 causes and effects to reach first or original facts, or are attempting by division and subdivision to reach simple and primary facts. All facts are caused by antecedent and preexisting facts, and all facts in turn become the prolific source and origin, the potent and efficient causes of still other and succeeding facts. No fact springs into existence of itself, and no fact is wholly isolated from other facts. All facts constitute a chain, or rather net-work of causes and effects, from the creation down to the present time, and as we cannot by any possibility reach to the beginning of creation, we therefore cannot by any possibility reach first or original facts, or isolated facts. Nor can we by any possibility reach ultimate simple facts. Whether, indeed, there are any such things as ultimate simple facts, is as much a debatable question as whether there are ultimate atoms of matter, dr ultimate portions or divisions of time or space. Facts, when brought into existence, must in the nature of things occupy time and space in coming into existence, and in having an ■existence. Hence they must in the nature of things be as endlessly divisible into smaller portions as the time and space which they occupy, which are generally believed to be infinitely divisible. Hence the minutest fact that comes within our comprehension must necessarily be composed of an infinite number of still smaller facts; and hence we cannot know anything of ultimate simple facts. Our knowledge really extends only to comprehending (and that obscurely) compound facts, or complex facts. And as all facts are connected more or less intimately with other facts — being first effects, and then causes — they may all be used as proof of these other facts with which they are connected, or may in turn be proved by them. They may be the probative facts, the evidential facts, or the final facts to be proved. They may be the evidence of the facts, or the facts to be finally proved or found. And all findings of fact, whether of a court or a jury, or a referee, are necessarily mere conclusions or inferences drawn from the evidence — that is, drawn from other facts. It is, therefore, not a valid objection to a finding of a jury that it is the finding of a compound fact, or a complex fact, or a comprehensive fact including many minor and subordinate facts, or that it is a conclusion, or an inference from the evidence or from other facts; for all findings must necessarily be subject to these same objections. The jury’s findings are always conclusions. They cannot be otherwise; and the jury cannot in any case, or in any sense, find ultimate facts. They can find the facts in great detail, or they can find them in very general or comprehensive terms. And where they find the facts both in detail and in general terms, we may disregard the general findings. If the findings in detail contradict the general findings, we may order the judgment to be rendered in accordance with the findings in detail, and wholly ignore the general findings. For instance: Where a question of negligence arises in a case, the jury cannot be allowed to say conclusively, after finding certain special facts, that these facts constitute negligence, when in fact and manifestly they do not constitute negligence. But in order to disregard the general conclusions of the jury, it is necessary that it may be seen that they are only general conclusions from the special facts which have already been sufficiently ascertained or found. Otherwise, it would be necessary to regard such general conclusions as general findings of fact. Many of the general findings in this case must be disregarded, for they are not only against the evidence, but they are also in conflict with the findings of the jury made in detail; that is, with the special facts found by the jury.
III. The'court below refused to submit the following among other questions to the jury, to wit:
“ Q. 15. Was not the said ear on which hé was riding, proceeding at a slow rate of speed, and of the speed of the ordinary walk of a man, and sufficiently slow to permit the said Plunkett to climb on the south side of the car, and to then walk along with it, and when it arrived where another car was standing, for him to then walk in front of said car, and to then bend down, and stoop his body in order to make the coupling between the cars on which he rode, and the one standing on the track?”
This was not refused because of its leading form, but because the court below did not regard it as a proper question to be submitted to the jury. We think the court below erred. We know of no good reason why it should not have been submitted. It embodies questions of fact material to the case, and was based upon the evidence. It is generally error for the trial court to refuse to submit to the jury questions of fact, material to the case, and based upon the evidence.
IV. We shall consider all the other questions together. And the main question is this: In what consisted the negligence (if any there was) which caused the death of Peter Plunkett? If the defendant was guilty of negligence at all, it must have been in ordering and permitting (through its yard-master, Joseph A. Russell) the deceased to attempt to couple said cars. And if the deceased was guilty of any contributory negligence, it must have been either in not properly observing the manner in which the cars were loaded, or in not stooping a little lower in attempting to make the coupling. It cannot be said that the defendant was guilty of negligence (that is culpable negligence) in receiving’ the cars, for the mere reception of them could not by any possibility have injured any one. If the cars had been immediately unloaded, or if for any cause no attempt had been made to couple them, the accident would not and could not have happened. It is not claimed that there was any negligence except in the respects above mentioned; that is, in the defendant receiving the ears and in ordering and permitting the deceased to couple them, and in the deceased not observing how the cars were loaded, or in not stooping low enough to avoid the danger. It is admitted that the deceased knew the condition of the weather, the-condition of the ground, the condition of the track, the condition of the cars (not including the manner in which they were loaded), and the manner in which the cars were to be coupled, as well as the defendant or any of its other servants or agents did; and hence if the defendant was guilty of .negligence in- any of these respects,' the deceased must also have been guilty of negligence in at least as high a degree as the defendant, and therefore in either case, that is, whether there was any negligence- or not in any of these respects, the plaintiff cannot recover. The deceased knew that it was raining, and knew that he was to couple the cars without an engine being attached to either of them, and no complaint is made of anything else by the plaintiff, except the manner in which the cars were loaded. The brakes were in good condition, and the deceased might have stopped the cars at any point. Indeed, the deceased was master of the situation. Almost every act (if not every one) that directly contributed to bring about the injury was the sole act of the deceased. He uncoupled from the engine the two cars which were to be coupled to the third car; and after the two cars were thus uncoupled from the engine (which engine was behind these two cars), the engineer by means of the engine gave the two cars a slight push forward and eastwardly, starting them toward the third car, to which they were to be coupled. This was the last act, performed by any person except the deceased, which in any manner or degree contributed to the last sad and mournful result. At this place the track was slightly descending, and the two cars moved forward by their own weight and the momentum given them by the push of the engine. The engine did not follow them. While the cars were thus in motion, the deceased passed along on the south side of them, to the front end of them, and climbed upon the front end of the forward car and stood there near the brake and rode there until he nearly reached the third ear, when he jumped off the car on which he was riding, on the south side thereof, and passed around in front of it and between it and the third car, for the purpose of coupling the two cars together. He made the attempt to couple them, and in doing so stooped down for the purpose of avoiding all danger from the projecting timbers. But he Sid not stoop quite low enough. If he had stooped six inches lower, and probably less, he would have been perfectly safe, but he miscalculated, and the projecting timbers struck the back part of his head and crushed it so badly that he soon died.
We do not think that the defendant was guilty of negligence in ordering the deceased to couple the cars, or that the deceased was in attempting to couple them; and this whether the parties knew the exact condition of the cars or not. Cars in the condition in which these cars were could easily be coupled in safety, provided the person coupling them knew their condition and exercised proper care and skill. These very cars, while in the same condition, and only two or three hours after the accident occurred, were coupled together in safety by the defendant’s other brakeman, and by yard switch-man O. C. Nichols. And during the time that the deceased was in the employ of the defendant, cars in the same condition in which these cars were were frequently received by the defendant and coupled and uncoupled in safety. Even the deceased himself had previously and frequently coupled and uncoupled such cars. But if it was negligence for the defendant to order the deceased to couple said cars in the condition they were, then it was also negligence for the deceased to attempt to couple them in that condition, provided he knew their exact condition; and if the deceased was negligent in this respect, then of course the plaintiff cannot recover. And we think the deceased must have known the condition of the ears. Indeed, he could not well have avoided knowing their condition, if he kept his eyes open and used them. And his actions in stooping as he did, in attempting to make the coupling, would indicate that he knew how the cars were loaded. The circumstances proved on the trial of the case would seem to indicate more strongly that the deceased knew how the cars were loaded, than they do that any other servant or agent of the defendant knew the same; and still it seems to be admitted that the defendant, through its servants and agents, did know how the cars were loaded. The forty-third finding of the jury, heretofore quoted, states that the deceased knew the condition of the cars, and how they were loaded. But for the purposes of the case, we may suppose that the deceased did not in fact know at any time how the cars were loaded, and still it does not follow that the defendant was guilty of negligence in ordering the deceased to couple the cars. It was not the first time that cars had been received in the yard loaded in the manner in which these cars were loaded. It was not the first time that the deceased had been called upon to couple such cars. And he was not called upon in this instance to couple them in the dark. But cars had been frequently received in the yard loaded as these cars were loaded; and the deceased had frequently coupled such cars; and he was called upon in this instance to couple the cars in broad daylight. The only thing that might even be suggested as being in the way, was, that it was raining; but there is no pretense that the rain obstructed the vision of any one to any considerable extent. The defendant had a right to believe that the deceased would use his eyes, and his best judgment; that he would exercise all proper care and caution and skill, and that he would couple the cars in safety. He had previously had much experience in these matters. The defendant could not have anticipated that the deceased would fail to see how the cars were loaded; it could not have anticipated that he would fail to use proper care and skill and caution in coupling them; and it could not have anticipated that he would fail to couple them, or that he would be injured in attempting to do so. If this had been the first time that cars had been received in the yard loaded in the manner in which these cars were loaded, or if the deceased had been a new man in the yard, or inexperienced; or if it had been in the night-time that the coupling was to be done,-as was the case in Hamilton v. The Des Moines Valley Rld. Co., 36 Iowa, 32, it might then,and probably would have been negligence for the defendant to order the deceased to make the coupling, without first explaining to him the condition of the loads and all the dangers • connected with’ the act of making such a coupling. And even then, after making such explanations, it might still have been negligence if the deceased had been inexperienced, and if the defendant knew it.
In connection with this case, we would refer to the following cases as having some application: Flanagan v. C. & N. W. Rld. Co., (Wis. Sup. Ct.,) 7 N. W. Rep. 203; 50 and 51 Wis., and also a decision of the same case, 45 Wis. 98; Hughes v. Winona &c. Rld. Co., (Minn. Sup. Ct., Sept. Term, 1880;) Kroy v. C. R. I. & P. Rld. Co., 32 Iowa, 357; Pennsylvania Co. v. Hankey, 93 Ill. 580; Williams v. A. T. & S. Rld. Co., 22 Kas. 117, 120.
The court below gave the following among other instructions to the jury:
“Although Peter Plunkett may have been guilty of misconduct pr negligence which contributed remotely to the injury, yet if the misconduct, mismanagement or negligence of the defendant, its agents or employés, was the immediate cause of the injury, and if with the exercise of reasonable prudence and care on the part of defendant the injury might have been prevented, then it, the defendant, would.be still liable for the injury”
This instauction was misleading and erroneous. If the deceased, Peter Plunkett, was guilty of negligence at all, his negligence was clearly and necessarily direct and proximate, and not remote or far removed from the injury. It was certainly as near to the injury as was that of the defendant. His negligence, if he was negligent at all, was in not observing the manner in which the cars were loaded, or in not stooping quite low enough in attempting to make the coupling; while the defendant’s negligence, if the defendant was negligent at all, was in ordering and permitting the deceased to make the coupling. Indeed, the court in other instructions seems to have placed the negligence of the defendant further back even than we have placed it. The court speaks of “the prior negligence of the defendant,” and would seem to place this prior negligence as far back as the reception of the cars.
"We think the court below also erred in refusing to give certain instructions asked for by the defendant. These instructions asked for, though in various forms, were in substance, that if the deceased knew all the circumstances, and with his eyes open attempted voluntarily to make the coupling, or if, in other words (and these words are ours), he was guilty of negligence proxiinately contributing to the injury, the plaintiff could not recover. The court refused these instructions as asked, but gave them adding these words: “ Unless the prior negligence of the defendant unnecessarily created the danger, or unless by reason of the negligence of the defendant, and while the deceased was in the exercise of ordinary care, he received the injuries complained of.” In one instance, where the instruction asked for contained the word “negligence,” without any qualifying words, the court added the following words: “ If such negligence of the deceased proximately contributed to the injury complained of.”
The court refused to give other instructions which we think might also have properly been given.
We do not think it is necessary to extend this opinion any further. Upon the facts of the case, we do not think that the plaintiff is entitled to recover. The ruling of the court below upon the demurrer to the plaintiff’s evidence is not however assigned for error in this court, and hence we cannot consider that ruling. And although we can say that many of the special findings of the jury against the' defendant are mere general conclusions drawn by the jury, and generally incorrectly drawn, from other more specific findings, or from the facts found and stated in these other more specific findings, and therefore that such general conclusions, or general special findings, (if we may be allowed the expression,) need not be considered, but may be wholly ignored and disregarded; yet we cannot say that all the special findings made by the jury against the defendant are of this same character, or that they may be treated in this same manner. And hence we cannot say that such of the special findings as may not be rejected or disregarded will support or authorize a judgment in favor of the defendant. And construing the findings of jury in this manner, while we cannot order a judgment to be rendered upon them in favor of the defendant, yet we can say that several of them, together with the general verdict of the jury, are against the evidence, and ought to have been set aside upon the motion which was made by the defendant to set them aside and for a new trial. We think the court below erred in overruling the defendant’s motion for a new trial.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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Per Curiam:
Plaintiffs in error contend that the verdict is wrong, and that no cause of action was proved. Counsel for defendants in error object to the consideration by this court of the question raised, on the ground, that the record does not purport to contain all the evidence. The only allegations in the record referring to the evidence are: “The plaintiffs rest;” “the defendants rest.” And after these expressions it appears other evidence was presented to the trial court. Therefore the objection is well taken, as it is not apparent that the whole case is here. (Comm’rs of Brown Co. v. Roberts, 22 Kas. 762; Moody v. Arthur, 16 Kas. 419.)
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
VALENTINE, J.:
The motion made by the defendant in error to dismiss the plaintiff’s petition in error, is overruled. The petition in error is based upon a case made for the supreme court, which was properly made and served upon the adverse party within the time given by the court below; but after the case was made and served, then came great delays in settling, signing and authenticating the same. But these delays were not caused by any fault of the plaintiff in error. He pushed the matter with commendable zeal; and if the counsel for the defendant in error had been half as willing to have the case properly settled, signed and authenticated as was counsel for the plaintiff in error, there would have been but little trouble. The delays however in settling, signing and authenticating the case did not invalidate the same. There is no law limiting the time for settling, signing or authenticating such a case. We think the case is sufficient notwith standing such delays, and notwithstanding any other objections urged against it.
This action, as between the plaintiff in error, who was defendant below, and the defendant in error, who was plaintiff below, was an action of replevin, or at. least an action in the nature of replevin, for the recovery of eight municipal bonds. A judgment was rendered in the case in favor of the plaintiff below and against the defendant below!' The judgment purported to be rendered on a default, and was in the alternative that the plaintiff should recover said bonds, or in case the bonds could not be obtained, then that the plaintiff should recover of and from the defendant the sum of $9,475, (as the value of the bonds,) and costs. Afterward the defendant moved the court to set aside and vacate this judgment on the grounds, first, of a want of jurisdiction in the court to render the judgment, and second, for irregularity in obtaining the same. The court below heard the motion, and upon the evidence submitted ordered that the judgment should be set aside and vacated, upon the condition, however, that the defendant had a valid defense to' the plaintiff’s action. The court also ordered that the defendant should file an answer setting forth his defense, and that the plaintiff have leave to reply thereto. In pursuance of this order the defendant filed an answer setting forth, first, a general denial to the plaintiff’s petition; second, his own claim of ownership of the bonds, giving the details of how he became the owner thereof; and third, other matters not necessary now to mention. The plaintiff demurred to this answer, and the court sustained the demurrer as to the third defense. The defendant then amended his third defense, and the plaintiff then replied to the défendant’s answer. Upon these pleadings the case was regularly called for trial. The plaintiff demanded a jury, which was granted by the court over the objections of the defendant. After the jury were impanneled, the parties proceeded to introduce their evidence. The court held, over the objections of the defendant, that the defendant had the burden of proof, and held that the defendant should first intro-- ■duce his evidence. The defendant, excepting to this ruling, obeyed the court, however, and first introduced his evidence. The plaintiff then introduced his evidence in rebuttal, and the defendant then introduced surrebutting evidence. The court then charged the jury, and after due deliberation they found for the- plaintiff and against the defendant, and also found that the value of the bonds was $9,275. This was $200 less than said judgment was rendered for. The court then overruled the defendant’s motion to set aside and vacate ■said judgment, and rendered judgment against the defendant for the costs of the motion. The defendant then proceeded to make and serve a case for the supreme court, and after great trouble and many delays he finally succeeded in having the case settled, signed and authenticated, and then brought the case to this court for review on such case-made and on petition in error.
Many questions have be§n discussed by counsel in this court, but only a few of them, however, will require any discussion by us. The provisions of the statute under which the proceedings in this case were had to vacate said judgment, read as follows:
“Seo. 568. The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made: . . . Third,
For mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order.
“Sec. 569. The proceedings to correct mistakes or omissions •of the clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorney in. the action.”
“Sec. 571. The court may first try and decide upon the .grounds to vacate or modify a judgment or order before trying or deciding upon the validity of the defense or cause of , action.
“Sec. 572. A judgment shall not be vacated’on motion or petition, until it is adjudged that there is a valid defense to .the action on which the judgment is rendered; or, if the plaintiff seeks its vacation, that there is a valid cause of action; ■and where a judgment is modified, all liéns and securities obtained under it shall be preserved to the modified judgment.”
The provisions of the statutes of Ohio for reversing, vacating and modifying judgments and orders in the courts in which they were rendered, are precisely the same as the provisions for the same purpose are in this state. Sections 534, 535, 536, 537 and 538 of the Ohio eode correspond exactly to sections 568, 569, 570, 571 and 572 of our code. And in Ohio said provisions have been construed by the supreme court of that state. (Frazier v. Williams, 24 Ohio St. 625; Watson v. Paine, 25 Ohio St. 340.)
According to the decisions made in Ohio, we should think, that the correct practice in cases of this kind would be as follows: When the court, on the hearing of a motion- to vacate a judgment under subdivision third of §568 of the civil code, becomes satisfied that such judgment was obtained irregularly within the meaning of said subdivision, and therefore that the party making the motion is entitled to have an opportunity to show that he has a good cause of action or defense, as the case may be, the court .should then vacate the judgment; but generally, however, upon the condition that the moving party shall first make such showing. And after the judgment has thus been vacated, and after the issues are all made up by filing the proper pleadings, as in other cases, (provided they have not already been filed,) the case must be tried upon such issues in the same manner as though no judgment had ever been rendered in the case; and after the trial and the decision of the court, or the report of the referee, or the verdict of the jury, (as the case may be,) the court must then vacate the judgment absolutely, or modify it in some respects, or wholly affirm it, as such decision of the court, or report of the referee, or verdict of the jury will warrant; and the judgment or order rendered on this trial is final, unless set aside as other final judgments are set aside. The reason for not vacating the original judgment absolutely in the first instance is, for the purpose that all rights, priorities and liens obtained by virtue of the original judgment may be preserved until it is ascertained whether the party in favor of whom the original judgment was rendered is, in fact and upon the merits, entitled to such a judgment, or to a similar judgment, and if he is, then all rights, priorities and liens obtained by virtue of the original judgment are preserved to him, so far as his final'judgment will sustain and uphold the same. Of course all pleadings filed in cases of this kind are subject to all the objections that may be urged against like pleadings in other cases. .
Where a judgment is conditionally set aside in favor of a defendant, his answer must of course state a defense, or he cannot ask to go to trial upon it. If the answer does not state a defense, a demurrer may be interposed the same as iii other cases. The defendant, however, in the present case (which was an action of replevin) had a right to prove his entire defense, so far as it was good, under his general denial. His defense really-was, that the plaintiff never owned said bonds, and that he never had the right to the possession thereof. We think the court below erred in holding that upon the defendant rested the burden of proof. It was certainly very embarrassing and perplexing to the defendant to have to prove that the plaintiff did not own the bonds in controversy; that he did not purchase them; and that he did not, by any transaction, obtain any right to the immediate possession of them. And unless the plaintiff did in fact purchase and own them, he had no right to recover any judgment against the defendant. Each party claims that he himself purchased the bonds, and that the other party did not purchase them. And each party claims that his own purchase of the bonds was prior to that of the other, provided that the other did in fact purchase them. These questions are all doubtful and difficult, and ought to be submitted fairly to a jury. Even if the defendant is wrong 'in all of his claims, still he is entitled to have his case tried fairly. But he believes that he. is right. We do not wish to express any opinion as to whicKof the parties owns the bonds. That is properly a question for the jury when the case is fairly submitted to them.
The judgment of the court below will be reversed, and a new trial ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
On the 3d day of July, 1879, J. I. Case •& Co., a corporation organized under the laws of the state of Wisconsin, filed in the probate court of Republic .county a demand against the estate of John Neil, deceased, upon the following note:
“MINERAL Point, Wis., Feb’y 7th, 1880. — Nine months after date, for value received, we promise to pay to the bearer, Francis Hambly, one hundred and forty-four dollars, with interest at 7 per cent., at W. F. Henry’s bank, Mineral Point. John Neil.
David Neil.”
Indorsed: “Francis Hambly; Oct. 27,1875, rec’d of John Neil one dollar.”
The administratrix of the estate filed a written answer to" the claim, alleging that the note was false and forged, also setting up the five-years statute of limitations, and stating that there had been no payment of money upon the-note within the lifetime of the intestate. The hearing upon the application to allow the demand was had August 28, 1879. The-court took the matter under advisement until September 1st, following, at which time judgment was rendered against the plaintiffs for costs. Thereupon an appeal was taken to the district court. No new pleadings were filed; nor was any application made therefor. The case was tried at the October term, 1879, of the court, without the intervention of a jury. The plaintiff, upon the trial, offered the instrument in writing, evidencing the alleged claim. The administratrix objected, on the ground of the absence of proof of the execution of the note and indorsement thereon. The court held the execution of the instrument and the indorsement were confessed, as there had been no denial thereof verified by the affidavit of any party. This raises the first question presented for our consideration: Does §108 of the code extend to cases like this appealed from the probate court to the district court,, where new pleadings are not filed, and the proceeding is heard upon the papers of the probate court? Said section reads:
“In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority,, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney.”
Now, §194, ch. 37, Comp. Laws 1879, relating to appeals-from the probate court, provides that upon the filing of the transcript and papers in the office of the clerk of the district court; the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without-regarding any error, defect or other imperfection in the proceedings of the probate court. The primary meaning of “anew” is “over again,” and to hear and try a case anew is to try the case “over again.” In the probate court a claim exceeding $50 must be established by competent evidence before it is allowed, and the court hears and determines the demand without any formal pleadings. When the appeal is perfected in the district court, the court is possessed of the cause, and hears and determines the same anew. These provisions seem to give each party in the district court the right to prove any demand or defense which might have been proved in the probate court upon the papers filed. In this light, §108 has no application to appeals of this character where the parties do not file new pleadings. Clearly, a failure to deny under oath the execution of a written instrument set up as a demand in the probate court, does not dispense with the proof of its execution, and if the district court takes the case, and proceeds with it anew upon the appeal, the like practice ought to prevail there. In justice, § 108 ought not to extend to the representative of a deceased party in proceedings to establish demands upon written instruments in the probate court, and if new pleadings are not filed in the district court, the same rule should follow. The court therefore erred in receiving the instrument without due proof of its execution and the indorsement thereon. The decisions upon appeals from justices of the peace, under §124, ch. 81, Gen. Stat. 1868, are not applicable here, as that section specifically prescribes that on appeal to the district court, the parties are to proceed in all respects in the same manner as though the action had been originally instituted there.
When the written instrument was presented in evidence it appeared from the face thereof that the rate of interest had been changed either from 7 to 10 or from 10 to 7 per cent., and the administratrix objected to the reception of the writing in evidence until such apparent alteration had been explained. The court overruled the objection, and held that the burden of proof was upon the defendant to show that the alteration was made after its execution. Counsel challenge this rule, and insist that the weight of authority is: If, on the production of a written instrument it appears to have been altered, it is incumbent- on the party offering it in evidence to explain this appearance. This is a vexed question, and the books are full of diverse decisions. Four different rules are generally stated: First, That an alteration apparent on the face of the writing raises no presumption either way, but the question is for the jury; second, that it raises a presumption against the writing, and requires therefore some explanation to render it admissible; third, that it raises such a presumption when it is suspicious, otherwise not; fourth, that it is presumed, in the absence of explanation, to have been made before delivery, and therefore requires no explanation in the first instance."
It is impossible to fix a cast-iron rule to control in all cases; but certainly the second rule, and the one contended for by plaintiff' in error, is not the true one. Clearly, in ordinary cases the alteration ought not to raise a presumption against the instrument, because the law never presumes wrong. The question as to the time of the alteration is, in the last instance, one for the jury. It is, like any other fact in the case, to be settled by the trier or triers of the facts. Generally, the instrument should be given in evidence, and in a jury case should go to the jury, upon ordinary proof of its execution, leaving the parties to such explanatory evidence of the alteration as they may choose to offer. If there is neither intrinsic •nor extrinsic evidence as to when the alteration was made, it is to be presumed, if any presumption is said to exist, that the alteration was made before, or at the time of the execution of the instrument. Perhaps there might be cases when the alteration is attended with such manifest circumstances of suspicion that the court might refuse to allow the instrument to go before the jury until some explanation; but this case is not of that character. (National Bank v. Franklin, 20 Kas. 264; Stoner v. Ellis, 6 Ind. 161; Paramour v. Linsey, 63 Mo. 63; White v. Hass, 32 Ala. 470. See also Hunt v. Gray, 35 N. J. L. 227; Hayden v. Goodnow, 39 Conn. 164; Davis v. Jenney, 1 Metc. 221.)
Many of the authorities conflicting with these views, upon examination will .be found to have been based upon principles applicable to the alteration of written deeds only, and seem to have been founded upon the solemn character of sealed instruments as evidence. As the deed was the only evi dence of a contract under seal, and could not be contradicted, it was highly important that it should declare the true intent of the parties, and that it should speak an unvarying and unequivocal language; therefore it was deemed necessary to protect it from every possibility of alteration; hence the. reason of many of the decisions holding every alteration as raising a presumption against the instrument. (Henry Pigot’s Case, 11 Co. 27.)
On account of the admission of the note without sufficient proof of its execution, the judgment of the district court must be reversed, and the case remanded.
All the Justices concurring.
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Per Curiam:
The principal question to be decided in this case, as is shown by the record and admitted by counsel, is: Who owns the annual crops growing on land under the following circumstances? A judgment and decree of foreclosure are rendered against the owner of the land, on a note and mortgage. Afterward, the owner sows wheat and rye upon the land. Afterward, an order of sale is issued, and the land is sold, and the sale confirmed., and a sheriff's deed is execute!! to the purchaser, who immediately takes possession of the property. Afterward, the crops mature, and are ready to be harvested.
Under such circumstances, we think the crops belong to the purchaser. This question has already been decided in this court, in the case of Smith v. Hague, ante, p. 246. The judgment of the court below in this case will therefore, upon the authority of the above decision, be reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by
HobtoN, C. J.:
Action brought by Joseph McDonald against L. J. Sawyer, H. D. Shepard, Daphne Shepard, C. D. Waldo, Abbie E. Waldo, J. H. Burke, R. H. Baird', B. P. Seymour, and William G. Lucas, and H. D. Shepard and C. D. Waldo, late partners as H. D. Shepard & Co., and H. D. Shepard and C. D. Waldo, late partners as Shepard & Waldo. The petition alleged substantially the following facts:
That on the 27th day of July, 1875, the plaintiff agreed to and did sell to L. J. Sawyer the west half of lot fourteen, in block thirty-five, in Burlingame, Osage county, in this state, for the sum of two hundred and fifty dollars, to be paid as follows: Fifteen dollars on the 1st of December, 1875; thirty-five dollars on the 1st day of January, 1876; twenty-five •dollars on the 1st day of July, 1876; seventy-five dollars on the 1st day of January, 1877, and fifty dollars on the 1st day of July, 1877; that all of said sums unpaid on July 1, 1876, were to draw interest at the rate of ten per cent, per annum; that under the written contract he put L. J. Sawyer into possession of the premises, and that said Sawyer, and persons claiming under him, have continued to occupy the premises; that no part of the purchase-money has ever been paid; that there was due on the contract two hundred and fifty dollars, with interest at the rate of ten per cent, per annum from July 1, 1876; that said Sawyer is and has been absent from the ■state for more than one year; that plaintiff has always been ready and willing to deliver to him a good and sufficient deed upon the payment of the said several sums and interest; that the other defendants claim some lien, estate or interest in the •premises under said Sawyer and subsequent and subject to the interest and contract of plaintiff, the nature and extent of which the plaintiff is ignorant, but of which he demands proof. The petition concluded with the prayer that the contract might be decreed to be absolute; that an account be •taken of the amount due on the premises; that the land be 'appraised, advertised and sold according to law to satisfy the sum found due and costs, and for such other relief as might ■be deemed equitable and just. On October 9, 1878, judgment was rendered as upon default against all the defendants upon a finding that the facts set forth in the petition were true; the sum remaining due was adjudged to be three hundred and six dollars and twenty-five cents, and a lien on the premises. The property was ordered to be sold to pay the judgment, and defendants decreed to be barred of all right, title or equity of redemption. On January 15,1879, upon the mo tion of H. D. Shepard and C. D. Waldo the judgment was set ' aside as to them, on the ground of its having been rendered without consideration of their answer then on file. The answer set up that H. D. Shepard and C. D. Waldo, as Shepard & Waldo, and formerly partners as Shepard & Co., were, the owners of the frame building on the premises, of the value of' six hundred dollars. On July 19, 1879,.the cause was tried before the court, without a jury, and. findings of fact and conclusions of law were made. The findings were as follows: “That on the 27th day of July, 1875, the plaintiff, Joseph McDonald, was the owner of the following real estate, situated in Osage county and state of Kansas, to wit: The west half of lot No. 14, in block No. 35’, in the city of Burlingame; that on the 19th day of May, 1875, the defendants, L. J. Sawyer and Candace Sawyer, were the owners of a certain frame house situated on lot No. —, in block No. —, in said city of Burlingame; that on the 19th day of May, 1875, L. J. and Candace Sawyer made, executed and delivered to the defendants, PI. D. Shepard and C. D. Waldo, their certain chattel mortgage, whereby they sold and conveyed said house to them for the purpose of securing an indebtedness due from them to Shepard and Waldo, in the sum of $956.69; that said mortgage was, on the 20th day of May, 1875, duly filed with the register of deeds of said Osage county; that on the ■-day of June, 1875, at which time the said Sawyers had leased said half-lot from McDonald, L. J. and Candace Sawyer, by the permission of the said-plaintiff, Joseph McDonald, and with the knowledge and-consent of Shepard and Waldo, removed said house and placed it upon the west, half of plaintiff’s lot, upon a stone foundation; that on the 27th day of July, 1875, the plaintiff, Joseph McDonald, sold said half-lot to L. J. and Candace Sawyer for the agreed price of $250, on deferred payments; that at the time of the sale the defendants, the Sawyers, were occupying the house; that the defendants, the Sawyers, had never paid said plaintiff any portion of the $250, the purchase price of said half-lot; that upon the 20th day of December, 1875, the defendants, Sawyers, had not paid any portion of the indebtedness for which they had executed the chattel mortgage to Shepard & Waldo, at which time, for the purpose of discharging said indebtedness, they sold and delivered to Shepard & Waldo the house in question; that subsequent to the sale of the house to Shepard & Waldo, and after the same had been placed upon the half-lot of plaintiff, the defendants, L. J. and Candace Sawyer, had built an addition to the east side and south end of said house, of about ten feet wide, one story high, of wood, and permanently fastened to said house with the knowledge of the plaintiff and Shepard & Waldo, and without any objection from any of said parties; that from the time of the sale of said house to Shepard & Waldo, they have been in the continuous possession thereof to the present time; that after the execution of the bill of sale to the house in controversy, the defendants, the Sawyers, executed and delivered to the defendants Shepard & Waldo a mortgage upon a large amount of real estate to secure the payment of the sura of $700, in which mortgage was included the half-lot in controversy, with all the appurtenances thereto belonging; that after the execution of the last mortgage aforesaid, the said L. J. Sawyer executed and delivered to said Shepard a quitclaim deed, in blank, to the said half-lot; that after the execution of the last mortgage aforesaid and before the execution of the quitclaim aforesaid, Candace Sawyer, the wife of said L. J. Sawyer, died.
Upon these facts, the court found as conclusions of law:
“That Shepard & Waldo were the owners of and entitled to the possession of the house in controversy; that they had the lawful right to move it from and off the lot within a reasonable time, and were entitled to judgment against plaintiff for costs.”
The findings being supported by sufficient evidence, the principal question for our determination is, whether the house is real property, or only a chattel? One answer only can be given; that is, it is a chattel. All doubts are solved by the clear intention of all the parties attendant upon the transactions brought out in the evidence. A mere recitation of the acts and conduct of such parties is conclusive of this. At the time the house was moved upon the premises it was only a chattel; at that time Shepard & Waldo held a chattel mortgage upon it, duly filed with the register of deeds of Osage county; the premises described in the petition of foreclosure were held by L. J. and C. Sawyer under lease from the plaintiff; the house was moved upon the leased real estate by the the tenants, with the consent of the landlord; it seems to have been valued at about three hundred dollars, and certainly it cannot be assumed that the sale of the half-lot in July, 1875, for two hundred and fifty dollars, was intended to include the house, which the plaintiff did not then claim and over which he had neither control nor possession. As Shepard & Waldo have been in continuous possession of the house since December 20, 1875, it is not apparent when or how the chattel has ever become a fixture, as they never released their claim to it, or consented that it should be a part of the realty. Under what circumstances structures and houses resting upon solid foundations are only personal property, is fully considered and commented upon in C. B. Rld. Co. v. Fritz, 20 Kas. 430; and as somewhat applicable to this case, we refer to Mills v. Bediek, 1 Neb. 437, and Fuller v. Tabor, 39 Me. 519, therein cited.
Counsel make the further objection that if the house be personal property, the defendants had no right to intervene and litigate its title in an action to foreclose a vendor’s lien upon real estate, and therefore that the court ought not to have overruled the demurrer to the answer. In support of their argument they say: “A. gives B. a mortgage upon his farm on which A. has at the time a horse in pasture; the mortgage becomes due, and when B. seeks to foreclose it can A. stay the action until he takes his horse off ? or can he defend by claim of title to the horse?” The illustration is not parallel. In the foreclosure of the real estate mortgage of B., no question can be presented to the court whether the horse is real or personal property. It is always a chattel, and never anything but a chattel. The mortgage merely embracing real estate has no connection with the animal. In the case at bar the matter is very different. Under some circumstances the house might be considered real estate; under others, personal property. An attempt was made in the foreclosure of the vendor’s lien to include the house as part of the realty. Shepard & Waldo were made defendants, and required to set up the nature and extent of their interest. They complied with the request of the petition, only, however, alleging a chattel interest. Plaintiff, in opposition thereto, claimed the house was of the realty. A foreclosure and sale of the premises, in the absence of any adjudication as to the ownership of the house, would have worked great injustice. The court rightly passed upon the question presented, and having determined that the house belonged to the defendants, properly allowed thirty days in which to remove the same. No error was committed in overruling the demurrer to the answer; therefore the judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered, by
Brewer, J.:
This is a proceeding in error to review the action of the district court of Johnson county in granting a new trial. It has been repeatedly held that in such cases this court will require a much stronger case for interference than when a new trial is refused. (Field v. Kinnear, 5 Kas. 233; City of Ottawa v. Washabaugh, 11 Kas. 125.) Does the record here present such a clear case as justifies us in disturbing the order of the district court? We think not. It is very evident that the jury disregarded the instructions of the court. Indeed, the point of counsel’s argui&ent is, that the court was wrong and the jury right, and that therefore this court should uphold the verdict and in that way correct the error of the court. Perhaps in some cases such practice might be proper, but rarely so, and never unless it is perfectly clear that the single matter in which the court .erred was necessarily decisive of the case. In this there was a question of good faith, and the court may well have doubted whether a jury which so plainly disregarded its instruction upon a question of law gave any due consideration to other questions involved. The motion for a new trial was based upon several grounds, and the ruling of the court granting^ new trial was general, and not placed upon any particular ground. It appears that in’ the fall of 1878, one Berkshire leased his farm to one Wilson for oné year, Wilson to pay as rent one-half the wheat and' one-third of the flax and corn raised on the place, the former to be delivered in the bushel and the latter in the crib. On the 8th day of July, 1879, plaintiff claims to have bought, this rental wheat, etc., and to have given $100 for it. On' the 11th of July, 1879, suits were commenced against Berkshire, and the tenant was garnished. At this time the flax and corn were still standing and growing in the field, and the wheat all stacked together and undivided. It appears that plaintiff did not make any examination of the property at the time of his purchase, and it does not appear that he ever any more than casually saw it when riding by the farm some days before. Berkshire testified that the property sold was worth $200, but that he needed money to pay interest due on a mortgage. Besides these, there were some other facts tending to cast suspicion at least on the bonajidea of the transaction. There was also prior to the garnishee proceedings-no division or separation of the landlord’s portion of the . crop from the tenants. Upon this last fact the court charged that “if at the time of the sale the property consisted of an undivided interest in wheat in the stack, and of flax and corn growing in the field and was mixed and mingled with other property of like kind, and was not separated and set apart or otherwise designated by anyone prior to-the garnishee summons, the plaintiff acquired no title as against the garnishee proceedings.” Notwithstanding this explicit direction and the undisputed testimony, the jury found for the plaintiff. Probably the court set aside the verdict because of the disregard of this instruction. Perhaps also because it did not think the purchase in good faith. That the court erred in its instructions, is affirmed by the learned counsel for plaintiff on the authority of Piazzek v. White, 23- Kas. 621. We do not think that case fully in point, as there the corn was harvested and cribbed, and capable of instantaneous separation and removal. Here the growing corn was immature', and not ready for division. It was uncertain what part, if any, would come to maturity; and the landlord could not, without,the consent of the tenant, select any rows of growing corn, or any part of the field, and claim the corn that should thereafter ripen thereon. While pointing out this distinction, we do not deem it necessary to decide whether the instruction was strictly correct, or not. It does not seem good practice to encourage. We should often discuss and decide questions which in the final disposition of the ease are found to be immaterial. The due and orderly administration of the law requires that the jury should follow the clear instructions of the trial court; then _any error may be corrected. But when the jury attempt to review and revise the law as given to them by the court, it will surely lead to confusion and frequent injustice.
It is clear to us that the court may have set aside the verdict on more than the one ground of a disregard of thief instruction; and we think substantial justice will more surely be done by leaving the case, as the district court left it, for the consideration of another jury.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the coprt was delivered by
Valentine, J.:
This was an action brought by Worth-ington Meixell against S. S. Kirkpatrick and another, in the district court of Labette county; to perpetually enjoin the enforcement of a certain judgment rendered in the district court of Wilson county. This judgment is the replevin judgment mentioned in the case just decided, of Meixell v. Kirhpatrich. The principal facts alleged in the plaintiff’s petition in this case are substantially as follows : Kirkpatrick commenced an action in the district court of Wilson county against Worthington Meixell and- - Angelí Matthewson, charging them as joint wrong-doers in obtaining and converting eight municipal bonds belonging to Kirkpatrick. Various proceedings were had in the case, resulting finally in the rendition of separate judgments against Meixell and Matthewson. The judgment against Meixell was in replevin for a recovery of the bonds or their value. The judgment against Matthewson was in trover, for the damages sustained by reason of the conversion of the bonds, including the value of the bonds. Afterward Kirkpatrick, for value received, transferred and assigned his said judgment against Matthew-son to Cornelia W. Matthewson, the wife of the judgment debtor. And Kirkpatrick is now about to enforce, in Labette ' county, by an execution issued from the district court of Wilson county, his judgment rendered against Meixell in Wilson county. The defendant answered to this petition, and the plaintiff demurred to the answer, and the court below sustained the demurrer as against the petition, holding that th.e petition did not state facts sufficient to constitute a cause of action; and from this ruling and holding of the court below, Meixell now appeals to this court.
We do not think that the court below erred. Meixell has not satisfied either of said judgments, uor has either of them been satisfied by any other person. Both judgments are still in full force and unsatisfied; the judgment against Meixell being held and owned by Kirkpatrick himself, and the one against Matthewson being held and owned by Kirkpatrick’s assignee, Mrs. Matthewson. Kirkpatrick, or his assignee, is certainly entitled to one satisfaction or to one compensation for the bonds upon which the judgments were rendered, and until such satisfaction or compensation is rendered, neither judgment can properly be enjoined. When Meixell or Mat-thewson satisfies one of said judgments, there will then be time enough to enjoin the other. We have thus far not taken into consideration the defendant’s answer in this case; and, for the purposes of deciding the case, we do not think that we need to do so. We do not think that the answer cured the defects of the petition. It must be remembered that neither Mrs. Mathewson nor Angelí Matthewson is a party to this suit, and therefore their rights cannot be adjudicated or determined in this action. Whether the compensation for said bonds should go to Kirkpatrick, or to his assignee, Mrs. Matthewson, cannot be determined in this case, as Mrs. Mat-thewson is not a party to this suit. If both judgments were allowed-to stand, and if Meixel'l.were ready and willing to satisfy the judgment against him, then the matter would possibly be a proper subject for interpleader. But Meixell has never been ready or willing to satisfy, the judgment .against him; and by the decision of this court in the case in which such judgment was rendered, the judgment is to stand conditionally vacated until a trial cari be had upon the merits of the action, and what shall then become of the judgment depends entirely upon the result of that trial:
The judgment of the court below in this case will' be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
HoktoN, C. J.:
Action by Agnes H. Kennedy (late Taylor), James W. Kennedy, and six others, as plaintiffs, against John T. Kennedy, as defendant, commenced May 30th, 1876, in the district court of Linn county, to enforce a trust. At the November term, 1876, the court overruled a demurrer to plaintiffs’ petition, and upon proceedings in error to this, court the ruling was .affirmed at our July term, 1878. (Kennedy v. Taylor, 20 Kas. 558.) On December 25th, 1878, defendant filed an answer setting up among other defenses, that he obtained deeds to himself of all the lands in controversy prior to 1869, and alleging plaintiffs’ cause of action was barred by the statute' before the filing of the petition. The case was tried before the court, without a jury.. The court stated in writing the conclusions of fact found separately from the conclusions of law. The conclusions of' fact are:
“ 1. That John Kennedy died, in the town of Cleves, Ohio,, on or about the 17th day of July, 1863, intestate, leaving Alice Kennedy, widow of said John Kennedy, and the following-named children: Sarah J. Kennedy, since Sarah J. Parker, who has since died, leaving her husband, William Parker, and her children by said husband, (Billa A. Parker, Horace Parker, William Parker, jr., and Edwin Parker,) John T„ Kennedy, Agnes H. Kennedy, since Taylor by marriage, and now Agnes H. Kennedy by divorce, Alice M. Kennedy, now Harrison by marriage, and James W. Kennedy, his heirs-at-law.
“ 2. That there was no administration on the estate of the said John Kennedy, deceased, but that his said widow and children took possession of his property left by him at his death, and his business, and conducted the same in the name of his said widow, Alice Kennedy, the said business being managed and conducted for the most part by the defendant herein,-John T. Kennedy, up to sometime in the year 1866, at which time the property of the said deceased, with the increase and profits added thereto, amounted to $3,800.
“3. That in the years 1866 and 1867 the defendant, John T. Kennedy, by consent of said widow and children, and with the understanding that he should invest the said money in lands and a store, or other business for said widow, his mother, in the state of Kansas, received said money, and invested the same in lands, and a saw-mill and saw-mill business' in the state of Kansas.
“4. That he, defendant, first invested the said moneys in lots 5, 6 and 7 of sec. 22, T. 20, R. 24, in Linn county, Kansas, and in the half of the north half of N.W.J of sec. 28, T. 20, R. 24, Linn county, Kansas, and in a saw-mill and business, in the years 1866 and 1867, and took the title to said lands in his own name without the consent of said widow and said other children of said deceased.
“5. That he afterward sold and closed out said saw-mill business, and sold and transferred a part of said lands, and with the proceeds purchased and improved other lands, of which he is now in possession, and the title to which he took and now holds in his own name, without the consent of the said widow and other heirs of the said John Kennedy, deceased, to wit: The undivided half of the north half of the northwest quarter of sec. 28, T. 20, R. 24, in Linn county, Kansas, purchased by the said defendant in 1866, and the title taken by him in his own name; also the undivided one-third of the north quarter of the northeast quarter of sec. 35, T. 20, R. 24, in Linn county, Kansas, purchased and the title taken by said defendant in his own name, in the year 1869; also the southwest quarter of sec, 34, T.20, R. 24, in Linn county, Kansas, purchased and the title taken by him, the defendant, in his own name, in the year 1869.
' “6. That the said Alice Kennedy, widow of the said John Kennedy, deceased, died intestate in the year 1875, March 22d, in Linn county, Kansas, leaving the parties plaintiff and defendant to this action her lawful heirs.
“7. That the said defendant took the deeds to all of said lands in his own name from 1866 to 1869, inclusive. •
“8. That Alice M. Harrison, on her own motion, caused this action to be dismissed as to her, during the trial thereof.”
The conclusions of law are:
“1. That the defendant, John T. Kennedy, committed a fraud on the said Alice Kennedy, widow of John Kennedy, deceased, and on the other children of said John Kennedy, deceased, in taking the title to said lands in his own name without their consent.
“2. That plaintiffs’ cause of action arose at the time when the said defendant so took the title to said lands in his own name without the consent of the other heirs of John Kennedy, deceased.
“ 3. That the plaintiffs’ cause of action was barred by the statute of limitations before the commencement of this action.
“4. That the defendant is entitled to a judgment for his costs expended in this action, against the said plaintiffs.”
Judgment having been entered for the defendant, the plaintiffs bring the case here for review.
On the part of the defendant, a motion has been made and argued to strike from the record attached to' the petition in error some thirty pages of testimony alleged to have been inserted after the case-made was withdrawn from the office of the district clerk. In view of the result we have reached, it is unnecessary for us to pass upon the motion. The conclusion of law, that the plaintiffs’ cause of action was barred by the statute of limitations before the commencement of this action, is fully sustained by the findings of fact and also by the evidence. We need refer only to Main v. Payne, 17 Kas. 608. The fraud of John T. Kennedy was consummated when he took the title to the real estate in his own name.
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
HoetoN, C. J.:
This case was before this court at the July term, 1878, (21 Kas. 354,) and remanded for a new trial. The plaintiff below by an amended reply among other matters alleged, that as the consideration to her to execute the mortgage on her homestead to procure the loan, a parol contract was entered into between Preston Bowen, her husband, and herself, that she should receive the money so procured as hers absolutely, in order to protect her homestead against the mortgage, and that only the net profits arising from the investment of the money were to belong to Preston Bowen, to be applied towards his debt to the Citizens’ Bank; that she received the money procured on the note and mortgage as the consideration to her for mortgaging her homestead, and that the money was deposited in the bank as-her own. The Citizens’ Bank demurred to this amended reply, which was overruled by the court. The issues were submitted to a jury, verdict found in favor of Constance Bowen, and judgment rendered accordingly.
The principal question now is, whether the facts alleged in the amended reply take the case out of the rule laid down in the former decision in 21 Kas., supra. All the other material questions submitted, except the form of the verdict and the assessment of the recovery, hinge upon the conclusion to that inquiry. Upon the former hearing in this court, the money obtained upon the note was treated as the personal property of Preston Bowen only; the deposit of the money in the bank in the name of the wife as a mere gift, utterly void; in view of his insolvency, within § 1, eh. 62, Gen. Stat. 562, and §§1, 2, ch. 43, Gen. Stat. 504. The case is now presented in a very different aspect. Under the allegations of the amended reply, Mrs. Bowen incumbered her homestead to the extent of $1,650, subjecting it, as was said in Sproul v. Atchison National Bank, 22 Kas. 340, “ upon ’a contingency, to be sold away from her, and herself and family to be driven from the premises, houseless and homeless.” Although her surety for her husband, in one sense, may be said to be remote, yet it was of such a character that if the mortgage was not paid, ’ it would inevitably take the homestead. Before signing the mortgage and thus placing property, otherwise exempt, in jeopardy, Mrs. Bowen contracted that the money to be procured on the note and mortgage should' be paid to her as the consideration for the execution of the mortgage on her part. The consideration being sufficient between the parties, the agreement was valid, and when the money was paid to her, or deposited in the bank in her name subject to call, in pursuance of the agreement, the money was the property of Mrs. Bowen, and this without contravening the rights of her husband’s creditors, because, by her act, it was procured upon a homestead, “ toward which the eye of the creditor need never be turned.” In Sproul v. Atchison National Bank, supra, the land was held or pledged for the payment of the mortgage. In the case at bar, the proceeds of the note and mortgage were turned over to the wife, to be held by her for her protection in the payment of the mortgage. The demurrer was therefore properly overruled, and the issues having been found in her favor, she was entitled to recover the deposit in the bank. We do not decide as to the competency of the .evidence of Preston Bowen, objected to, because we. do-not think it sufficiently prejudicial, whatever view is taken of it, to cause a reversal of the judgment. The other testimony, uncontradicted, was amply sufficient to support the findings and verdict.
One other matter remains: The jury found for plaintiff below in the sum of $1,161.64, with interest at seven per cent from January 17th, 1877, to date. It is contended that the-court could not take the interest into consideration in render-iog judgment, and the case of Ed. Ass’n v. Hitchcock, 4 Kas. 36, is referred to. In that case the rate of interest was not specified; here, from the face of the verdict, the amount of damages assessed can be calculated with mathematical certainty. See Wilson v. Means, ante, p. 83.
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
"VALENTINE, J.:
This was an action brought by John M. Neville against the Kansas City, Lawrence & Southern railroad company, for killing certain stock of his in Anderson county, Kansas. The action was based upon the railroad stock law of 1874. (Comp. Laws of 1879, pp. 784, 785.) Under the provisions of such law every railroad company is made liable for all stock killed by it in operating its road, except where such “road is inclosed with a good and lawful fence to prevent such animals from being on such road.” (Sec. 5 of said law.) The action was commenced before a justice of the peace, and the plaintiff alleged in his bill of particulars, among other things, “that the said railway of defendant was not, at the time of said killing, and is not now, inclosed with a good and lawful fence to prevent said animals, or any other animals, from being on said railway.” This was the only allegation in the bill of particulars with regard to a want of a sufficient fence. On the trial of this case in the district court, to which court the case had been removed by appeal, the plaintiff proved that “the railroad of the defendant was not fenced where they (the animals of the plaintiff) were killed.” This was the only evidence introduced or offered with regard to the railroad being fenced or not being fenced. All the other allegations of the plaintiff’s bill of particulars were sufficiently proved; and upon the bill of particulars and the evidence the court below found generally in favor of' the plaintiff and against the defendant, and rendered judgment accordingly.
The defendant below, plaintiff in error, now claims that the judgment of the court below is erroneous, because it was not sufficiently alleged or proved that the defendant’s road was not sufficiently fenced where the animals first went upon the road. It is true that the allegation with regard to the want of a fence was not very definite, or very artistically stated;' still, no objection was at any time made to such allegation because of any supposed insufficiency in its terms. The parties went to trial upon the bill of particulars containing this allegation as though such bill of particulars was sufficient in every respect; and the supposed defective allegation is almost in the exact language of the statute. After the defendant took the chances of a trial upon such bill of particulars, without at any time making any objection thereto, and the bill of particulars being merely indefinite, but not so much so as to be void, we think that it ought now to be held to be sufficient. Counsel for plaintiff in error is probably correct in claiming that in order to enable the plaintiff to recover of a railroad company for animals killed in the operation of its road, plaintiff must show that the road was not fenced where the animals first entered upon the premises; but we think the evidence in this case, though slight, was sufficient from which the court might find that the road was not so fenced. It was clearly shown that the road was not fenced where the animals were killed, and the court might well find from such evidence that the animals entered upon the road where they were killed. There was nothing in the case to show that the animals entered upon the road at any other place. This point has been virtually decided by this court, in the case of K. P. Rly. Co. v. Wood, 24 Kas. 619, 626.
Now while we are inclined to agree with counsel, that if the animals had entered upon the road at a place where the railroad company was not bound to fence its road, or if the animals had broken over a lawful fence and entered upon the road, and then had wandered to a place where the road was not fenced, and had there been killed, without any negligence on the part of the railroad company, that the railroad company would not be responsible; but as it is not necessary to decide that question in this case, we shall not decide it, for we think the evidence was sufficient to justify the court below in finding that the road was not fenced where the animals entered upon'it; or, at most, we do not think that we would be justified in overturning the finding and judgment of the court below merely • because they were made and. rendered upon such evidence.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
VALENTINE, J.:
This is an original action of mandamus, brought in this court by Fletcher P. Privett against T. H. Stevens, F. B. Singer and J. W. Clehouse, the county commissioners of Harper county, Kansas, and H. O. Meigs, the county clerk of said county, to compel them to canvass certain election returns. The plaintiff claims that, at the November election, in 1880, he was duly elected to fill a vacancy in the office of sheriff of said county; and claims that the defendants, without any legal excuse therefor, have persistently refused to canvass the returns of such election. An alternative writ of mandamus was issued from this court and served upon the defendants, who made their return thereto. A trial was had, and from the facts admitted and proved, and from the briefs and arguments of counsel, it appears that the only grounds upon which the defendants rely as a justification or as an excuse for not canvassing such election returns are, that there were certain irregularities in the returns, and that the plaintiff is not eligible to hold the office of sheriff. These grounds, we think, are not sufficient. That there was a vacancy in the office of sheriff, that an election was held to fill such vacancy, and that the plaintiff received a majority of all the votes cast at such election, do not seem to be seriously questioned; but whether questioned or not, all these facts were sufficiently proved. The only questions, then, for us to consider are those concerning the alleged irregularities, and the alleged ineligibility of the plaintiff.
I. With reference to the returns from nearly all the townships in said county, there were no irregularities; or, at most, none that are supposed to be material. The returns from only two or three of the townships are supposed to be so materially irregular or defective as to render the returns invalid ; but, as we think, even the irregularities in these returns are not material. The principal irregularity complained of is, that the returns from one or two or three of the townships were made out on separate pieces of paper, and that these pieces of paper were not in any manner attached to each other. This is, partially at least, true; but these separate pieces of paper were folded together by the judges and clerks of the election, and in that condition put into an envelope, and the envelope sealed up, and all returned in that condition to the county clerk. Now tlie failure to attach these pieces of paper together, was certainly a very slight irregularity. It should not invalidate the election. It should not invalidate even the returns from the townships in which the irregularity occurred. And it certainly should not invalidate the returns from all the other townships, and townships where no such irregularity occurred. But even if such an irregularity would invalidate the returns from the township in which the irregularity occurred, still that would be no excuse for refus- ' ing to canvass the returns from other townships where everything was regular. This excuse for refusing to canvass the returns of the election of 1880 is certainly pretty thin.
II. The other ground upon which the defendants refused to canvass the returns is, that the plaintiff voluntarily entered and served in the confederate army during the war of the rebellion. Now the evidence does not show that the plaintiff voluntarily served in the rebel army, or that he voluntarily aided or abetted the war of the rebellion in any manner whatever. Besides, this is not a question for a board of canvassers to determine. They are merely ministerial officers, and it is their duty to canvass the returns as they find them, and to declare the result of such canvass; and whether the parties voted, for are eligible or not, is a question to be determined by some other tribunal. If the plaintiff is really ineligible to hold the office, it will be time enough. to consider that question after he has received his certificate of election, after he has qualified for the office, and when he attempts to get possession thereof. We think this ground for the refusal to canvass the returns is also insufficient. Judgment will therefore be rendered in favor of the plaintiff and against the defendants, and a peremptory writ of mandamus will be ■issued to compel the defendants to canvass said election returns.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action on an injunction bond. Two questions only are presented. The bond was conditioned to “pay all costs and damages which may be awarded against them on the final hearing in this cause by the court.” It appears that the injunction was dissolved, but the terms of the order of dissolution are not shown.
First, it is contended that, as it is not shown that any damages were awarded in the action in which the bond was given, none can be recovered, the liability of sureties being limited to the express terms of the contract. The bond was given under § 242 of the code, which requires the party obtaining an injunction order to give an undertaking “to secure to the party injured the damages he may sustain, if it be finally decided that the injunction ought not to have been granted.” If the language of the bond or undertaking had followed the statute, there would be no doubt as to the liability. But it must be presumed to have been under that statute, as there is none other applicable; and the plaintiff brought and obtained by means of such bond the injunction. Even a void bond has been enforced against the obligors, when they have received the full benefit thereof, and this upon the doctrine of estoppel. (Daniels v. Tearney, [Sup. Court U. S.,] 11 Rep., p. 113.) In that case it appeared that the bond was given in compliance with a statute of Virginia made to aid in the in-surrectionary movements of 1861. The bond was therefore under an unconstitutional, statute, and void. But inasmuch as the principal in the bond had by means thereof obtained all the benefits attempted to be conferred by such statute, it was held that the obligors were estopped to deny its validity.’ Now the principal in this undertaking obtained by means thereof the restraining order. Can the obligors thereafter say that this bond was outside the statute; that the restraining order .was improperly issued thereon, and that they are not bound for all damages sustained by the defendant? Again, what is meant by the words, “in this cause,” as they appear in the bond? Technically, doubtless- they refer to the particular action in which the bond is given. But the damages which flow from an injunction order are sustained after the suit is commenced and order made. They are not strictly assessable in that action, but only in-a subsequent suit.- And that suit is simply on the bond for damages. It is an independent action, but an outgrowth of and founded upon the injunction action. Were the parties trifling when they gave this undertaking? Did they mean to assume no liability save that of costs, or did they refer to the final hearing and adjustment of rights and obligations between'the parties founded upon this injunction order? They speak of “final hearing.” They say “cause,” not “case,” or “action.” Is not cause here used as equivalent to controversy, as referring to substance rather than form? We think the action maintainable.
The other question is, whether the defendant in the injunction suit can recover the fees of his attorney for services in obtaining a dissolution of the injunction before he has paid them. In this case the amount was agreed upon and the sum was reasonable. The defendant’s liability was absolute, but the fees had not in fact been paid. With perhaps the single exception of California, the authorities agree that if the liability is fixed and absolute, it is enough; payment is not an essential prerequisite. (Garrett v. Logan, 19 Ala. 344; Miller v. Garrett, 35 Ala. 96; McRae v. Brown, 12 La. Ann. 181; Brown v. Jones, 5 Nev. 374; Noble v. Arnold, 23 Ohio St. 264; 2 High on Injunctions, 1685; Shultz v. Morrison, 3 Metc. [Ky.] 98; Steele v. Thatcher, 56 Ill. 257.)
There being- no other question in this case, the judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
VALENTINE, J.:
This was an action brought by Richard Watson against P. G. Rickard and H. L. Dewing, personally, upon the following instrument in writing, to wit:
“March 2,1877. — Treasurer of School District No. 51, county of Sedgwick, Kansas, pay to N. Wood & Co., or bearer, the sum of forty-seven dollars and — cents, for school apparatus, (interest ten per cent.,) out of any funds in your possession raised or appropriated for such purpose.
P. G. Rickard, District Clerk.
$47.00. H. L. Dewing, Director.”
The plaintiff in his petition alleges that the defendant P. G. Rickard was clerk and the defendant H. L. Dewing was director of said School District No. 51, and that said instru ment in writing was given to N. Wood & Co. by the defendants for said School District No. 51; that the defendants were never authorized by said school district, or by any vote of the members thereof, to purchase said school apparatus, and that they had no such authority, nor any authority from the district, to give said order; and that said N. Wood & Co. knew these facts, but that they were unknown to the plaintiff; and that the plaintiff was at the time ■ of the commencement of this action the owner and holder of said instrument in writing, by purchase and delivery. The defendants answered, admitting substantially all the above facts, and further alleging, among other facts, the following:
“ That at the time of said purchase and issuing said order the defendants and said N. Wood & Co. supposed and believed that the said school-district board had authority in. law, by virtue of their powers as such school-district board, to make such purchase and issue said order without such vote or authority of a school meeting; and said purchase was made and said school order was issued by said defendants by reason of their said belief as to the law, and said school order was taken and accepted by said N. Wood & Co., by reason of their belief that said board and said defendants had authority in law to make such purchase and issue said order as the act of said school district.”
To this answer the plaintiff interposed a demurrer, which the court below overruled. The plaintiff then brought the case to this court.
The only question now to be considered is, whether said demurrer was rightly overruled or not. We do not think that the court below committed any error in overruling it. We think that the defendants’ answer stated a good defense to the plaintiff’s petition; and indeed it is doubtful whether the petition itself stated any cause of action. The facts; as shown by the petition and answer taken together, are substantially as follows: H. L. Dewing was director of School District No. 51 of Sedgwick county, Kansas, and P. G.. Rickard was the clerk of said district, and the two together constituted .a majority of the school-district board. N. Wood & Co. sold to them certain school apparatus, exclusively for the school district — the members of the board never having or obtaining any personal interest therein — and they executed the instrument sued on in this case. They had no authority from the school district to purchase said apparatus, because they had never been authorized so to do by any vote or at any meeting of the school district. Both the defendants and N. Wood & Co. were acquainted with all the facts, but all labored under a mistake of law, believing that the defendants had authority in law to make the purchase and to issue said order, without any special authority being given to them by the school district. Afterward the order was sold and transferred by delivery by N. Wood & Co. to the plaintiff Watson, who was not acquainted with the foregoing facts.
Upon these facts, are the defendants personally liable? We think not. (Duncan v. Niles, 32 Ill. 532; Mann v. Richardson, 66 Ill. 481; Abeles v. Cochran, 22 Kas. 405.) There is no pretense that the defendants intended at the time of issuing the order to bind themselves, nor that N. Wood & Co. understood that they intended to bind, or were in fact binding themselves, but it was understood by all the parties that the defendants were binding the school district only; and under the pleadings the mistake committed by all the parties was a mistake of law, and not a mistake of fact.
The plaintiff does not seem to claim in this court that he has any rights merely by virtue of being an innocent purchaser of the instrument sued on. He says in his brief that “The only question presented in this case is, are the officers of a school district individually liable where they exceed their authority in the purchase of goods in such manner as to impose no liability on the district to pay therefor?” The plaintiff does not seem to claim in this court that he stands in any better condition than N. Wood & Co. would if they were the plaintiffs, and we do not think that he does. The instrument sued on really showed upon its face its nature and character. It showed that it was a school-district orderj drawn by two of the school-district officers upon their treasurer, and that it was simply intended to appropriate school-district money to the payment of a claim against the district. The instrument shows so plainly what it was intended to be, that we do not think that the plaintiff could be an innocent and bona fide purchaser thereof. It must be presumed that he knew for what purpose it was given, and that the defendants did not intend to make themselves personally liable thereon. At least there was enough upon the face of the instrument to put him upon inquiry.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
VALENTINE, J.:
This action was brought by Albert Garner against Charles Tucker and L. B. Rock, partners as Tucker, Rock & Co. The plaintiff claimed judgment for $24, and succeeded in obtaining judgment in the court below for $14.75 and costs. The defendants now, as plaintiffs in error, claim that this judgment is erroneous, or at least excessive to the amount of seventy-five cents. They claim that no judgment should have been rendered against them, or, at most, a judgment for only $14. The principal facts of the ■case are as follows:
Garner purchased a bill of lumber of Tucker & Rock, for which he was to pay $200. Garner claimed that Tucker & .Rock were to furnish six windows, which were to be included in the bill; which windows were never furnished. Four of these windows were rated, as Garner claims, at $2.50 apiece, and the other two windows at $2 apiece, making a total of $14. The plaintiff also claimed $10 damages for other supposed breaches of the contract, making the whole amount claimed $24. The defendants, Tucker & Rock, claimed that the windows were not included in the contract. Afterward the parties had a settlement, which was made between Garner and Charles Tucker. Tucker deducted $5.92 from the bill on account of some supposed insufficiencies in the quality of the lumber, and Garner then paid the balance of the $200. The defendants claim that this settlement was final, but the plaintiff claims that it was final only upon a contingency, and that contingency was, whether Oscar Olm-stead, the plaintiff’s carpenter, who made out.the bill of lumber, should say that the windows were included in the bill. Afterward the plaintiff saw Olmstead and asked him about the windows, and Olmstead said that they were included in the bill. Plaintiff then claimed that the defendants should pay him for the windows, or rather, that they should return to him the money which he had paid to them for the windows. They refused, and he then brought this action to recover said money and for damages. When the case was called for trial in the court below, the defendants moved for a continuance, and filed an affidavit of A. Tucker, an agent of the defendants, in support of their application; it does not appear that either of the defendants was personally present. The application for the continuance was made for the purpose of procuring the testimony of the defendant, Charles Tucker; who was then absent. The affidavit shows that his testimony was material, and the only question for the court to determine was, whether due diligence had been used to obtain his testimony. That portion of the affidavit which tends to show diligence reads as follows:
“A. Tucker, being first duly sworn, says that he is the duly authorized and empowered agent of the defendants; that the defendants cannot safely go to trial in the above-entitled cause for want of material testimony, viz., that of Charles Tucker, a material witness and one of the members of the firm of defendants; that said Charles Tucker has been and is now absent on a trip to Michigan, on important and urgent business, and is now on his way back to attend this court; that defendants did not subpena him for the reason he was beyond the jurisdiction of this court, and defendants could not take his deposition, for the reason that he shifted himself from place to place after his departure from here so rapidly that it was impossible to serve notice with any certainty ; that said witness was to have been here by this time to attend this suit, and so wrote defendants, but for some reason unknown to defendants is detained and belated ; that said Charles Tucker is not absent, or his testimony, on account of any fault or want of diligence on the part of defendants ; that he lives at Nickerson, Kansas, and his testimony can be procured at the next term of this court, and within reasonable time.”
I. We do not think that the court below erred in overruling this application for a continuance. No sufficient diligence was shown to procure the absent testimony. It was the testimony of one of the two defendants that was wanted. This absent defendant was half the firm, and the head of the firm that was sued. He voluntarily left the state and went beyond the jurisdiction of the court without leaving his deposition, and then “shifted from place to place ... so rapidly” that his deposition could not be taken; and then gave no reason why he was not back in time to attend the trial; and what the reason was, is not yet known. No sufficient diligence was shown to authorize a continuance. (Campbell v. Blanke, 13 Kas. 62; Swenson v. Aultman, 14 Kas. 273; Wilkins v. Moore, 20 Kas. 538.)
II. We do not think that the court below erred in admitting the testimony of the plaintiff as to what Oscar Olmstead said. Said settlement between the parties was to be final in all respects, unless Olmstead should say that the windows were included in the bill of lumber; and if he should say that they were included in the bill, then the settlement was not to be final with regard to the windows; and hence it was necessary not only to ascertain what he might say about the matter, but it was also necessary to prove on the trial what he in fact did say on the subject; and it was shown on the trial, by the said testimony of the plaintiff, that he did say that the windows were included in the bill. This evidence was not introduced for the purpose of proving the fact that the windows were in- eluded in the bill, but only to show what Olmstead said about it, and thereby to show that the settlement between the parties was not in fact final. Oscar Olmstead himself was introduced as a witness to prove the other fact, that the windows were in fact included in the bill; and he so testified. Other witnesses were also introduced to testify with reference to this same subject.
■ III. We do not think that the court below erred in refusing to give the special instructions numbered 1 and 2. The only question for the jury to determine (aside from the measure of damages) was, whether the windows were in fact included in the bill of lumber, or not. And upon this question the court instructed the jury sufficiently. Among other instructions, the court gave the following:
“There is but one question of fact for you to determine: Were the windows figured in the bill of lumber purchased by plaintiff of defendants? If they were, defendants are liable; if they were not, defendants are not "liable for their value. The burden of proof is on plaintiff, and the measure of damages, if you find for plaintiff, will be the value of the windows.”
IV. We think, however, that the court below erred in allowing evidence to be introduced with reference to other damage than that pertaining to the windows, and in giving the following instruction:
“Plaintiff also claims other damages for breach of contract, and there is no dispute as to the seventy-five cents.”
The settlement between the parties was, under the evidence, conclusive and final, except as to the windows; and this seventy-five cents for other damages should not have been allowed. The jury, however, under the evidence and this instruction of the court, allowed said seventy-five cents, and the court rendered judgment therefor. In this we think there was error.
V. We do not think that the court below erred in urging the jury to agree upon a verdict.
With the consent of the defendant in error, plaintiff below, the judgment of the court below will be modified by reducing it seventy-five cents, and making it a judgment for just $14 and costs; and the costs of this court will be equally divided between the parties. Otherwise, the judgment will be affirmed.
All the Justices concurring.'
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The opinion of the court was delivered by
HortoN, C. J.:
This was an action in the nature of ejectment, brought by plaintiffs against defendant, in the district court of Cowley county. The only question presented for our determination is, whether the defendant in error was entitled to the benefit of the occupy ing-claimant law. The facts are these:
Under* sec. 12 of the act of congress of July 15th, 1870, certain lands on the Osage diminished reserve could be sold by the United States to actual settlers, and to actual settlers only. Defendant, who was not an actual settler, procured James A. Brake to enter upon the land in controversy and purchase the same from the United States in his own name as an actual settler, the defendant furnishing the purchase-money and all other necessary means therefor. All this was done under a parol agreement between the parties, that as soon as the purchase was complete, Brake should convey the land to defendant, and the defendant in consideration therefor should convey a portion thereof back to Brake. After Brake purchased the land, the defendant offered to fulfill his part of the contract, but Brake refused to convey to the defendant any portion. On May 1st, 1872, a patent issued from the United States to Brake for the land; on May 29th, 1873, the defendant commenced an action against Brake in the district court of Cowley county to procure title thereto; at the July term, 1873, of the court, the demurrer of Brake to the petition of defendant was sustained, upon the ground that it did not state facts sufficient to constitute a cause of action, and the defendant was allowed twenty days from the close of the term to amend his petition. The petition, however, was not amended. At the next term, and on October 29 th, 1873, defendant moved the court to open up the decision and set aside the judgment sustaining the demurrer, which was granted, and upon a new hearing the demurrer was overruled. At the September term, 1874, trial was had in the action, and judgment rendered in favor of the defendant, and the sheriff of Cowley county was directed to make a deed for the land to defendant. The sheriff duly complied with the judgment of the court, and on October 8th, 1874, executed a deed to the land in dispute, reciting the judgment; which deed was recorded October 13,1874. Pursuant to the judgment, and the sheriff’s deed, the defendant entered upon and took possession of the land so conveyed to him, and has resided thereon ever since, and made lasting and valuable improvements. On June 12th, 1876, Brake filed a petition in error in this court to review and reverse such judgment; thereafter, such proceedings were had therein, that at the July term of this court for 1877 the judgment was reversed. (Brake v. Ballou, 19 Kas. 397.) At the May term, 1878, of the district court, a judgment was rendered in favor of Brake against defendant, in pursuance of the mandate of this court. During the pend-ency of the action of defendant, against Brake, and on October 21st, 1873, Brake sold and conveyed to Samuel A. Stephens, one of the plaintiffs, the land, and on January 2d, 1878, said Stephens duly conveyed to J. Jay Buck and L. B. Kellogg, partners as Buck & Kellogg, plaintiffs, an equal undivided one-half thereof.
Upon these facts, we do not think the district court erred in deciding that the defendant was entitled to the benefit of the occupying-claimant law. Sec. 1, ch. 102, Laws of 1873, provides for several classes of cases. The first class is where the occupant is in quiet possession of any lands or tenements for which such person can show a plain and connected title, in law or equity, derived from the records of some public office. This has been held to embrace patents, governors’ deeds, certificates of entry of the public lands, military surveys, and the like. (Beardsley v. Chapman, 1 Ohio St. 119.) A second class is where the occupant, being in quiet possession, holds by deed, devise, descent, contract, bond, or agreement from or under a person of the first class. Now the conveyance executed on October 8, 1874, by the sheriff of Cowley county, had the same effect until annulled or until proceedings had been commenced for that purpose as if executed by Brake, against whom the judgment was rendered. (Code, §400.) Therefore the defendant under such conveyance was within the second class, as he derived his title by deed from an occupant in quiet possession, having a plain and connected title in law derived from the records of a public office. At the time of making the improvements, the defendant was acting upon a judgment and decree of a court of competent jurisdiction, and no attempt was made to challenge such judgment until June 12th, 1876, when the proceedings in error were commenced in this court. We held in Hubbard v. Ogden, 22 Kas. 671, that it would not be in consonance with either justice'or equity to allow a party who had procured an erroneous judgment, and had obtained the property thereundei’, to retain the fruits of the judgment after it had been reversed by this court; but when a party has in good faith taken possession of land upon an erroneous judgment under the circumstances of this case, and made lasting improvements thereon, such possession ought to be a sufficient justification for his recovery as an occupying claimant, because such improvements add to the value of the real estate. He loses, in fact, the fruits of his judgment, but upon the statute, founded in equity, obtains the value of the improvements. The plaintiffs contend that as defendant had not amended his petition prior to the sale of the land from Brake to Stephens, and as his original petition had been adjudged fatally defective, the plaintiff Stephens, and the other plaintiffs as his grantees, had no connection with the action pending by defendant against Brake. This is not correct. Stephens and his co-plaintiffs were bound to take notice of the action pending against Brake, their grantor, concerning this property, and also of the power of the court to permit the pleadings to be changed or amended, and the power of the court to change and set aside its own orders. In other words, Stephens stepped into the shoes of Brake, and neither he nor his co-defendants have any rights to the land in controversy superior to those which Brake would have had if h.e were plaintiff. The fact that the defendant was ultimately defeated in his action against - Brake, is no conclusive argument against his enjoying the benefits of the occupying-claimant law. If he had been successful in the suit commenced by him, he would possess a good title to the land; but having been unsuccessful, he is permitted only to obtain the value of his improvements — he loses the land.
The order and the judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
PIorton, C. J.:
The question for our determination is, whether a sheriff is primarily liable to the publisher of a newspaper for notices of sales of lands made by him upon executions and orders of sales? Section 454 of the code makes it the duty of the sheriff to advertise and sell the real estate described in an order of sale, or levied upon under an execution, agreeably to the provisions of art. 20, ch. 80, Comp. Laws of 1879. Section 457 of the code provides:
“Lands and tenements taken on execution shall not be sold until the officer cause public notice of the time and place of sale to be given for at least thirty days before the day of sale by advertising in some newspaper printed in the county, or, in case no newspaper be printed in the county, in some newspaper in general circulation therein, and by putting up an advertisement upon the court-house door, and in five other public places in the county, two of which shall be in the township where such lands and tenements lie. All sales made without such advertisement shall be set aside, on motion, by the court to which the execution is returnable.”
And §§460 and 461 read as follows:
“The officer who levies upon goods and chattels, or lands and tenements, or who is charged with the duty of selling the same by virtue of any writ of execution, may refuse to publish a notice of the sale thereof by advertisement in a newspaper, until the party for whose benefit such execution issued, his agent or attorney, shall advance to such officer so much money as will be sufficient to discharge the fees of the printer for publishing such notice.
“Before any officer shall be excused from giving the notification mentioned in the last section, he shall demand of the party for whose benefit the execution was issued, his agent or attorney, (provided either of them reside in the county,) the fees in said section specified.”
Section 472 prescribes, among other matters, that if any sheriff shall refuse or neglect to execute any writ of execution to him directed, which has come to his hands, or shall neglect to return any writ of execution to the proper court on or before the return day thereof, such sheriff shall on motion be amerced in the amount of said debt, damages and costs, with ten per cent, thereon, to and for the use of the party in whose favor such writ was issued.
Under the provisions of these sections, 6ounsel for plaintiffs contend that the sheriff, by giving notices of sales of lands to the publisher and requesting such notices to be printed in his newspaper, becomes personally liable for the legal fees. We do not so understand the purport of the statute. The sheriff acts in an official capacity and as an agent in these matters. The publisher accepts from him as agent the notices of sale, with the knowledge that they are to be published for the party for whose benefit the execution or order of sale is issued: It is true the sheriff may demand of the party for whose benefit the execution or order is issued, the fees for publishing a notice of sale, and may refuse to advertise unless the fees are advanced to him; but this is merely a provision of which he may or may not avail himself. If a publisher refuses to pub lish the notices tendered until he is paid, the sheriff may demand the fees in advance, and if not paid, need not have the notice pubished. Unless, however, he makes himself personally liable.by special contract, he is not liable to the publisher, under the statute, for the fees for such advertising, when such fees have not been advanced to him, simply because he officially hands the notice to the publisher and requests it to be printed for the time required by the statute.
Sec. 17, ch. 39, Laws of 1879, provides that the printers, not the sheriff, shall be entitled to receive as fees for publishing any legal notice, or any order, citation, summons, or any other proceeding or advertisement required by law to be published in any newspaper, certain specified rates for each square of two hundred and fifty ems for the first and each subsequent insertion. Generally, these fees are collected as costs from the proceeds of the sales of lands, or from the judgment debtor. But if not so collected, the party for whose benefit the advertisement is made, if he has not already advanced them, must pay them. The publisher, on receiving the notice of sale, may refuse to publish it until he is paid. But in the absence of a special contract, if he does publish, he cannot look to the sheriff as personally liable therefor.
The order and judgment of the district court in sustaining the demurrer to the first, second and third counts in the petition will be sustained.
All the Justices concurring.
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Per Curiam:
This action was brought by A. Y. Cobb against the St. Louis, Kansas & Arizona railway company, under §1, ch. 136 of the Laws of 1872, (Comp. Laws 1879, p. 785,) to recover of the railway company for supplies furnished for the subsistence of persons working in the construction of its road. The judgment of the court below was in favor of the plaintiff and against the defendant; but it must be reversed, upon the authority of the case of Wells v. Mehl, ante, p. 205, The supplies were not furnished to the railway company, nor were they furnished to a contractor with the company, nor even to a sub-contractor, but to a sii6-sub-contractor (if we may be allowed to use the expression); that is, to a person -contracting and acting under a sub-contractor. Jay Gould was the contractor; Manderville, Dowling & Co., were the sub-con tractors; and Mastin Bros, were l^ie sub-sub-contractors, and the persons to whom plaintiff furnished supplies.
Among the agreed facts of the case, upon which the court below rendered its judgment, are the following:
“4.'It is admitted by the defendant that the plaintiff supplied said Mastin Bros., while so engaged upon said contract, with provisions and goods used by them in subsistence in carrying on said work, and that on the 22d day of March, 1880, there was a balance due the plaintiff from said Mastin Bros, of $333.16, on account of the goods and provisions so furnished incurred in carrying on said work; and said indebtedness has not been paid.
“5. It is admittéd and agreed that the railway company defendant had paid Jay Gould in full, and Manderville, Dowling & Co. have been paid in full, and Manderville, Dowling & Co. paid Mastin Bros, in full, and at* the times of said payments neither the railway company defendant, Jay Gould, nor Manderville, Dowling & Co., had any knowledge of the indebtedness in the petition set forth.”
The statute under which this action was brought provides substantially that when a railroad company lets a contract for the construction of its road, or any part thereof, and does not take a certain kind of bond from the contractor, (and none was taken in this case,) the railroad company shall be liable to “pay all laborers, mechanics and material-men,” (and it is admitted that the- plaintiff is not included in this class of persons,) “and persons who supply such contractor with provisions or goods of any kind; ” and the question is: Is the plaintiff included in this latter class of persons? This question we have already virtually answered in the negative, in the case of Wells v. Mehl, supra. The plaintiff in this ease did not furnish anything to be incorporated into the construction of the railroad itself, which alone would place him in the first class; and he did not furnish anything to the contractor, which we think is requisite to place him in the second class. He simply furnished, as above stated, a siíó-sub-contractor with provisions and other goods, for the subsistence of persons who at the most only worked in the construction of the railway.
The judgment of the court below will be reversed, upon the authority above referred to, and judgment will be rendered in favor of the defendant below for costs.
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The opinion of the court was delivered by
Brewer, J.:
In the year 1870, John Newland (now deceased) and his wife, Eachel Newland (defendant in this action), settled upon the tract of land in controversy, to wit, the east half of the southwest quarter, and the west half of the southeast quarter of section sixteen, in township twenty-nine, south, of range seventeen, east, in Wilson county, Kansas, and proceeded to improve the same. Soon thereafter, in the same year, Newland filed in the local land office, then situated at Humboldt, Kansas, his declaratory statement under §12, act of July 15, 1870, an act of congress providing for the sale of lands formerly occupied by the Great and Little Osage Indians, to actual settlers. Newland tendered the local land office the amount of money necessary under the act of congress aforesaid, and offered to make the necessary proofs, and demanded his certificate of entry, which was by the local land office refused, for the reason that the lands sought to be purchased were included within the grant to the state of Kansas for the use of schools. On the 20th day of June, 1871, John Newland contracted with the state of Kansas to purchase the lands mentioned under the law making provi sion for the sale of school lands in the state of Kansas, and then made his first annual payment under said contract, and on the 20th day of June, 1872, made his second annual payment, and thereafter made no further payment under the contract. In the year 1873 the tract of land in dispute was assessed for taxation, and, being delinquent, was, on the 4th day of September, 1875, sold for the tax of 1874, and was bid in by the county treasurer for the county of Wilson. The land was also assessed for the years 1875 and 1876. In the year 1875 John Newland died, leaving his wife Eachel in possession of the premises in dispute. In the year 1876 Eachel Newland filed her declaratory statement under §12, act of July 15, 1870, at the local land office at Independence, Kansas, and afterward tendered to the local land office the amount necessary to enter the land under the act of congress aforesaid, which office refused to accept her ■ money, for the same reason that John Newland’s money was refused at the local land office at Humboldt. On the 18th day of July, 1877, the plaintiff, E. P. Baker (a resident of the state of Iowa), paid to the treasurer of Wilson county the taxes levied on said land for the years aforesaid, with interest, penalties and costs, and took an assignment of the land in dispute, and on the same day paid to the treasurer of Wilson county the principal and interest due the state on the contract of John Newland. Upon this payment being duly certified to the proper officers, a patent was issued to plaintiff by the state, and thereupon, defendant refusing to surrender possession, this action was brought. Upon the trial, judgment was entered in favor of the defendant, and plaintiff alleges error.
The sole question presented by the record here is, the validity of the patent issued by the state to the plaintiff. This is assailed on three grounds, viz.:
1st. The land in controversy was not embraced within the grant to the state of Kansas for the use of schools.
2d. If it was so embraced within the grant, it violates the treaty between the United States and the Great and Little Osage- Indians.
3d. The plaintiff's purchase was in violation of the law providing for the sale of school lands in the state of Kansas.
The land at the time of the admission of Kansas into the Union was a part of the Osage Indian lands occupied by that tribe under the treaty of June 2,1825. (7 U. S. Stat., p. 240.) The ordinance prepared by the Wyandotte convention, which with the constitution was submitted to congress, contained this section:
“SECTION 1. Sections numbered sixteen and thirty-six, in each township in the state, including Indian reservations and trust lands, shall be granted to the state for the exclusive use of common schools; and when either of said sections, or any part thereof, has been disposed of, other lands of equal value, as nearly contiguous thereto as possible, shall be substituted therefor.”
The provisions of this ordinance were not satisfactory to congress, and in the act of admission it legislated as follows:
“Sec. 3. And be it further enacted, That nothing in this act shall be construed as an assent by congress to all or any of the propositions or claims contained in the ordinance of said constitution of the people of Kansas, or in the resolution thereto attached; but the following propositions are hereby offered to the said people of Kansas for their free acceptance or rejection, which, if accepted, shall be obligatory on the United States, and.upon the said state of Kansas, to wit:
“ First, that sections numbered sixteen and thirty-six, in every township of public lands in said state, and where either of said sections or any part thereof has been sold or otherwise been disposed of, other lands, equivalent thereto and as contiguous as may be, shall be granted to said state for the use of schools.” ...
These propositions were accepted by the state, by a joint resolution of the legislature, of date January 20,1862. (Comp. Laws 1879, p.-79.) They define and constitute the extent of the school-land grant at that date. Counsel for defendant argues very forcibly that Indian lands are not public lands,. and therefore not within the terms of this grant. We shall not stop to consider this argument, but pass to further matters.
By treaty with the Osages, concluded September 29,1865, (14 U. S. Stat., p. 687,) their lands were ceded to the United States. The cession reads as follows:
“Article 1. The tribe of the’Great and Little Osage Indians, having now more lands than are necessary for their occupation, and all payments from the government to them under former treaties having ceased, leaving them greatly impoverished, and being desirous of improving their condition by disposing of their surplus lands, do hereby grant and sell to the United States the lands contained within the following boundaries. . . . And in consideration of the grant and sale to them of the above-described lands, the United States agree to pay the sum of three hundred thousand dollars, which sum shall be placed to the credit of said tribe of Indians, in the treasury of the United States, and interest thereon at the rate of five per centum per annum shall be paid to said tribe semi-annually, in money, clothing, provisions, or such articles of utility as the secretary of the interior may from time to time direct. Said lands shall be surveyed and sold, under the direction of the secretary of the interior, on the most advantageous terms, for cash, as public lands are surveyed and sold under existing laws, including any act granting lands to the state of Kansas in aid of the construction of a railroad through said lands, but no preemption claim or homestead settlement shall be recognized. And after reimbursing the United States the cost of said survey and sale, and the said sum of three hundred thousand dollars placed to the credit of said Indians, the remaining proceeds of sales shall be placed in the treasury of the United States, to the credit of the ‘civilization fund/ to be used under the direction of the secretary of the interior, for the education and civilization of Indian tribes residing within the limits of the United States.”
On the 10th of April, 1869, congress passed this joint resolution (16 U. S. Stat., p. 55):
“jResolved by the senate and house of representatives of the United States of America in congress assembled, That any bona fide settler residing upon any portion of the lands sold to the United States, by virtue of the first and second articles of the treaty concluded between the United States and the Great and Little Osage tribe of Indians, September twenty-ninth, eighteen hundred and sixty-five, and proclaimed January twenty-first, eighteen hundred and sixty-seven, who is a citizen of the United States, or shall have declared his intention to become a citizen of the United States, shall be and hereby is entitled to purchase the same, in quantity not exceeding one hundred and sixty acres, at the price of one dollar and twenty-five cents per acre, within two years from the passage of this act, under such rules aud regulations as may be prescribed by the secretary of the interior: Provided, however, that both the odd and even-numbered sections of said lands shall be subject to the settlement and sale as above provided: And provided further. That the sixteenth and thirty-sixth sections in each township of said lands shall be reserved for state school purposes, in accordance with the provisions of the act of admission of the state of Kansas: Provided, how-, ever, That nothing in this act shall be construed in any manner affecting any legal rights heretofore vested in any other party or parties.”
That the proviso concerning the sixteenth and thirty-sixth sections is in effect a grant of such sections, is for this court settled by the decision in The State v. Stringfellow, 2 Kas. 263. In that case the language construed was, that “sections number sixteen and thirty-six in each township shall be and the same are hereby reserved for the purpose of being applied to the use of schools in said territory.” And upon this the court, by Crozier, C. J., remarks: “ It must be apparent that something more than a mere reservation from sale was contemplated by section thirty-four; and upon its construction the rights of the parties must depend. It is well settled that no particular words are necessary to constitute a grant, especially for public uses; and we are fully satisfied from the authorities that section thirty-four amounted to a grant of the lands therein described to the people of the territory, for the use of schools — a dedication — an appropriation thereof for that object. (Chotard v. Pope, 12 Wheat. 590; Rutherford v. Greene’s Heirs, 2 Wheat. 198; City of Cincinnati v. White’s Lessee, 9 Pet. 240; New Orleans v. United States, 10 Pet. 713; Trustees of Vincennes University v. The State of Indiana, 14 How. 268.)”
Counsel urges against this, that the proviso is limited by the latter clause, “ in accordance with the provisions of the act of admission of the state of Kansas,” and that as by that act none of these Osage lands were granted to the state, none pass by the reservation in this proviso. In other words, no more passed to the state than it really had received under the act of admission. Again, that the supposed grant is further limited by the subsequent'proviso, so as not to conflict with any vested legal rights; that by the treaty stipulations the’ Osages had a vested legal right to a sale of these lands for cash — a right which would be most seriously affected by any donation; and finally, that the government held these lands in trust for a special purpose; that no construction can be tolerated which implies a breach of this trust; and that the government could not if it would violate the treaty and the trust thereby assumed, by giving away lands it held only to sell. This argument does not commend itself to our judgment. It cannot be supposed that congress went through a form of words, meaning nothing; that it used language implying a grant but intending none. The sixteenth and thirty-sixth sections shall be reserved. The lands are named and the grant is positive and absolute. To suppose this annulled by the latter words of the proviso, is giving unwarranted force to a mere qualifying or explanatory clause. A reasonable construction is, that the sixteenth and thirty-sixth sections of these Osage lands, now belonging to government, are granted just as the same numbered sections of other government lands had been granted by the act of admission. The accord is in the numbers of the sections, and the purposes of the grant. In harmony with the spirit and intent of the act of admission, as well as the general purpose of congress in respect to schools, it extends the grant of the act to lands ‘not at that time fully within the disposal of the government. It is a grant in accord with the grant of the act, but is an actual grant, and not a mere recognition or confirmation of a doubted or disputed title.
It is true no construction of an act of congress will be favored which implies any disregard by the government of treaty obligations, or any breach of its trust. And it is along the line of this argument that much of the opinion in the case of the L. L. & G. Rld. Co. v. United States, 92 U. S. 733, runs. But still, if, though in plain violation of treaty and trust, the government should convey the land without consideration, the title of the grantee would have to be sustained. A treaty is but a contract between nations, and if either breaks it the act may be a wrong to the other, and one giving equitable right to compensation; but no subject of the nation breaking the treaty can repudiate the act of his own government. He does not stand in the courts as the next friend of the other contracting nation. So that if congress had granted this entire body of lands to the railroad corporations which claimed in the case from 92 U. S., supra, a por-" bion of them, or should grant them all to the state for school or other purposes, the title of the grantee would be good. No individual could dispute or defeat it on the plea that the government should have received a cash consideration.
But we need not rest this case upon the power of the government to do a wrong. • The treaty must be construed in the light of existing facts and settled lines of policy, and with the view of accomplishing the substantial objects, and not in a narro w or technical sense. It transferred a large tract of land hitherto vacant and unoccupied, a mere hunting-ground of the Indian, and contemplated a survey and subdivision into farms, and that it should become the homes of white men. It referred to existing laws as to survey and sale, and provided that they should govern in respect to the disposition. The land was to be sold “on the most advantageous terms, for ■cash;’'" but this has reference to the tract as a whole, and it left to the government a discretion as to how those, most advantageous terms could be secured. It would be a strange perversion to hold that the government was bound to exact cash for each separate quarter-section, when by granting a few for certain purposes a higher price could be obtained for the remainder and a larger amount realized from the tract as a whole. By established policy and existing laws, certain sections of public lands are set apart for school purposes. It seems to have been contemplated that the same policy should control in the- disposal of these lands.. While it may not be in terms said that this policy or disposition should control the limitations expressed, the exclusion of homestead and preemption claims and the reference to railroad grants all strengthen this conclusion. But even if the treaty were entirely silent as to these matters, the general provision to sell on the most advantageous terms, for cash, would give to the trustee a discretion as t.o the best means of securing such terms. The government was to exclude homestead and preemption claims; but those excluded, it was to dispose of the land in such manner as, in its judgment, would realize the most. The government has exercised its discretion, pronounced its judgment, and by the joint resolution, supra, has said what it thought the most advantageous terms — school grants, and $1.25 per acre if purchased within two years. Shall the courts say that the government erred, and that more advantageous terms could have been obtained? Upon what could any such assertion be based? It would contravene the established thought of to-day, that wealth runs along the school-line, and that the school house- is a grand factor in compelling and directing emigration.
We conclude that the implications of the treaty are in favor of the ordinary school grant, and that the express power authorizes such a grant. , Congress by it had violated neither the letter nor the spirit of the treaty. The full legal title being in the government, it could dispose of it as deemed best. Its disposition no individual can question. And its disposition was in this case within both the power and the thought of the treaty.
The other question is based upon the assumption that this was school land. In The State v. Emmert, 19 Kas. 548, we held that upon non-payment there was a forfeiture; that this forfeiture did not depend upon judicial action, but arose ipso faeio upon the failure of payment. Now it is said that no right to tax state lands exists. On June 20, 1873, default being made in interest, the rights of John Newland, the purchaser, ceased. The land became and was absolutely the property of the state. It was not subject to tax, and no tax proceedings subsequently thereto were of any validity. A purchaser at such proceedings took nothing, and could not make a purchase thereat the stepping-stone to the acquisition of the title from the state. The patent therefore was void, and passed no title. We cannot assent to these views. It is generally true that one in whose favor a forfeiture exists, may waive it. The state was the party entitled to the benefit of this forfeiture. No one else could claim its benefits. If, notwithstanding, it receives full payment of the purchase price and gives a patent, it does not lie in the power of any individual to question that title. Doubtless many instances will be found in the history of this state in which purchasers of school lands have failed to make their payments on the very day. Technically and strictly, such failure worked a forfeiture. But if notwithstanding thereafter such purchasers completed their payments and received patents, we suppose that their title is safe; certainly as against anyone but the state, and probably as against it. It may be said that no of-. ficer is in terms authorized to waive such a- forfeiture, or to relinquish any legal claims of the state. No officer can act outside the law, and bind the state. Doubtless this is true. But where the just and equitable claims of the state are fully satisfied, the acts of its officers in waiving mere technical and arbitrary forfeitures, and which are never challenged by the state itself, will be upheld as against the complaints of any third party. (Ewing v. Baldwin, 24 Kas. 82.) The transaction was between the state and the plaintiff. It has received its price for the land, and executed its conveyance. No-stranger to this transaction can question its validity.
The conclusions we have reached being in favor of the plaintiff’s title, the judgment of the district court will be reversed, and the case remanded with instructions to render judgment upon the facts found in favor of the plaintiff in error, for possession and costs.
Horton, C. J., concurring.
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The opinion of the court was delivered by
Valentine, J.:
John Lamme, who is the sole plaintiff in error in this court, and who' was one of the defendants in the court below, claims that the court below erred in rendering its judgment, and in making three certain orders in the case. We think, however, that the judgment and the orders must be affirmed.
The action was brought by John Schilling & Co., on a promissory note and to foreclose a mortgage, and to determine the priority of certain liens, as between themselves and certain of the defendants. There were four different claims, held by four different parties, each claiming to hold a lien upon certain real estate belonging to Harrison Shortridge, the principal defendant in the court below; and the princi pal and substantial ground of complaint urged by the present plaintiff in error is, that the court below postponed his claim and lien, and made it (the lien) a junior and inferior lien, and the one last to be satisfied out of the common property. The plaintiff in error therefore wants to tear up the entire proceedings in the court below. He claims that there were such irregularities in the rendition of the judgment as to make it void, and that it ought to have been set aside, modified and reformed upon his several motions.
I. We cannot review the rulings of the court below made in rendering the judgment, except so far as such rulings were involved in the subsequent rulings of the court below upon the motions; for the judgment was rendered more than three years before the case was brought to this court; and no reason is given why it was not brought to this court sooner; therefore; at the time it was brought to this court, it was not reviewable. (Civil Code, §556.) The judgment was rendered October 2, 1876, and the case was not brought to this court until January 21, 1880.
II. The plaintiff in error complains of the order of the court below confirming a sheriff’s sale. The order was made in April, 1877, and hence is reviewable in this court. He claims, first, that the sale was void because the notice of sale was published only four weeks; and second, because in the return of the appraisement, initials only are used in some portions of the description of the land.
The affidavit filed as proof of publication says it was published four weeks, but also shows that it was in fact published for thirty-two days before the sale was made, and before the notice of sale stated that it would be made, by being inserted five consecutive times in a weekly newspaper. The notice we think was sufficient. The description in the appraisement was as follows: “The north 35 acres of the west half of the southeast £ and the north 32 acres of the east half of the S. E. quarter, all in section twenty-one, town 3, of range 17, in Brown county, Kansas.” This use of initials and abbre viations did not render either the appraisement or the sale void. We therefore think the sale was properly confirmed.
III. On May 8,1879, the plaintiff in error moved to modify and reform the judgment because of irregularities in rendering the same, and on May 27, 1879, he moved to set aside the judgment, first, because the service of summons was by publication only; that he had no actual notice of the suit, and that he had a just cause of action. (Civil Code, §77.) Second, because* he did not have any notice of the suit whatever, and therefore because the judgment founded on such supposed defective summons was absolutely void. (Civil Code, § 575.) Third, because there was fraud practiced by the successful party in obtaining the judgment. (Civil Code, §568, sub. 4; §§ 570, 575.) , Fourth, because of irregularity in obtaining the judgment. (Civil Code, §568, sub. 3; §§569, 575, 306, sub. 1, 310.) _
_ Now it is not shown that there were any irregularities committed by the court in rendering the judgment, or by the parties in obtaining the same, and although service of summons was obtained on the plaintiff in error (defendant below) by .publication, yet he had other and actual notice of the pend-ency of the suit, and he appeared in the case and filed an answer therein and contested the case upon its merits; and it does not sufficiently appear that any fraud was practiced upon him by the successful party, or by any one else. But even if there was, still he failed to ask within two years, or by petition, as provided by statute, (Civil Code, §§575, 570,) to have the judgment vacated or modified because of such fraud.
Upon what evidence the original judgment' was rendered we cannot tell, as the evidence was not preserved; but. we must presume that it was sufficient to sustain the judgment; we must presume that it showed that Lamme’s lien was junior, inferior and subsequent to the other liens.
Lamme claims that he never made any appearance in the case, nor authorized, either directly or indirectly, any one else to appear for him. Upon this there is a conflict of evidence; and taking into consideration the presumption in favor of the regularity of the proceedings, and of the good faith of the attorneys who actually did appear for him, and the fact that Lamme’s evidence was of a negative character, and to prove that a fact did not exist, while the evidence on the other side was of a positive character, proving the actual existence of a fact, and supposing that his witnesses may have forgotten what did transpire, (and it is easier to suppose this than to suppose that the other witnesses remembered, or believed that they remembered, what never did take place,) we think the preponderance of the evidence was in favor of the theory that he did authorize an appearance. But suppose that said appearance was in fact void, as claimed by Lamme, and that the judgment, in consequence thereof, was also void so far as it affects Lamme, and still the same result must necessarily have followed that did in fact follow, for Lamme never had an execution issued on his judgment, (and certainly none was ever levied,) and therefore his lien became subsequent and inferior to the other judgment creditors’ liens. (Civil Code, §§468, 519.)
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court^was delivered by
Brewer, J.:
A few facts present the question in this case. Defendant being a non-resident, and indebted to plaintiff, the latter commenced an action, attached certain real estate as the property of defendant, .made publication, obtained judgment and order of sale of the attached property. Thereafter, defendant eomiDg into the state, plaintiff, ignoring all the proceedings had, brought an action on the original indebtedness, and sought an arrest of the defendant. The district court held that the action could not be maintained. Was this error? The proceedings in the former case had passed to judgment, but not to sale. Whether upon the sale the judgment would have been satisfied, is a matter of mere speculation. Nothing shows the value of the property attached, and while the record title seems to have been in defendant’s wife, yet it is shown that by proper proceedings to which she was a party a sale was ordered to satisfy the judgment in the attachment case. Howevér, in the view we take of the case, the latter proceedings have little significance. We concede for the purposes of this case that such a judgment does not conclude the defendant personally, or reach any property save that which is attached. While there may be a difference between the authorities, we shall assume that the law is as thus stated. Nevertheless, it must be conceded that the attachment proceedings bind the defendant’s interest in the property attached; that the judgment therein carries costs and claim; that sale may be ordered and sustained of defendant’s interest in the property attached; and that out of the proceeds the costs must first be paid, and then the claim. Under such circumstances, no second suit should be maintainable until the remedy sought in the first has been exhausted; or, unless it is shown that such remedy is in fact valueless, the principle that prevents multiplicity of suits, that prohibits that a defendant be twice vexed, controls. If the plaintiff, ignoring the first suit, may commence a second action, he may on the same principle ignore the second and commence a third, and so on indefinitely. Thus the defendant is uunecessarily vexed and wronged, and the time of the court improperly consumed. Generally, the pendency of one action is a bar to a second. (Bond v. White, 24 Kas. 48; 2 Kent’s Com., side page 123, and notes.) Here the first action is in one sense pending. It is an unfinished proceeding to subject certain property to the payment of this plaintiff. True, a judgment proforma was entered, but counsel for plaintiff contends and we concede that such judgment is not binding personally on defendant, and is no general adjudication of the fact of indebtedness. Hence it is but one fact, one step in an unfinished proceeding in rem. Until that proceeding is finished, or unless it is shown to be valueless, the defendant is entitled to protection against further litigation. Any other rule would tend to great injustice. By the attachment, the control of the property is lost to defendant. He cannot realize on it, because any sale would be subject to this lien. Suppose the property attached.were the only property of defendant: would it not be-a strange commentary on judicial proceedings, if a plaintiff could attach the property, and thus prevent a sale, and then turn around and arrest the defendant for not selling and paying the debt? How many suits in attachment can a plaintiff commence, and how many pieces of property can he separately attach? And can he, after tying up in various suits all the property of defendant, commence a new suit and arrest him for debt? The very scope of the inquiry suggests and compels the answer.
But it may be said, must a plaintiff) although having taken judgment, go on to sale when he find's that the sale will pro duce nothing either by reason of defect of title, amount of incumbrances, or otherwise, before he seeks another remedy ? Probably not; but if he seeks other remedy he should affirmatively make it appear that his prior proceeding has proved a failure, and his remedy valueless. Its existence is prima fade evidence of its value. That he commenced it is as against him a presumption that he derived benefit from it. If it was a failure, either partial or1 total, he must show it, otherwise his remedy must be adjudged good and sufficient. Without pursuing this argument further, the summing-up is this: either the judgment in the attachment suit is a binding adjudication upon the indebtedness and therefore a bar to any action on the original claim, or else it is one step in an unfinished and pending proceeding in the courts to subject property of defendant to the satisfaction of the plaintiff’s debt, and such proceeding, until finished or unless shown to be a failure either in whole or in part, is a good defense in abatement of the present action.
The judgment must therefore be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error brought his action to recover for the destruction of his property by a fire set by plaintiff in error to prairie grass. A trial was had, and verdict returned for defendant. On motion, a new trial was granted,' and upon the second trial plaintiff obtained a verdict and judgment. To reverse this, we have before us this proceeding in error.
It is alleged, first, that the court erred in granting a new trial. The ground upon which a new trial was granted was newly-discovered evidence. The affidavits of the moving party showed that he had made inquiry of all whom he thought likely to have knowledge of any facts material to his case, and had not ascertained that these witnesses knew of certain facts until after the case had gone to the jury. It appeared from' counter-affidavits that these witnesses lived within a mile or two of plaintiff, that they frequently passed his house, and under such circumstances that he could not have been unacquainted with them, or ignorant that they were in the neighborhood at the time of the fire. Now it is plain that if the court had refused the new trial, the case of Smith v. Williams, 11 Kas. 104, would be an authority directly in point to sustain such ruling. But it has been frequently held that where a new trial is granted, this court will require a much stronger showing of error before it disturbs such ruling, than in case the new trial was refused. (Field v. Kinnear, 5 Kas. 233; City of Ottawa v. Washabaugh, 11 Kas. 124; Bedell v. Nat. Bank, 16 Kas. 130.) The result of the second trial in this case tends strongly to show that justice was done in setting aside the first verdict and giving the parties another hearing. There is no pretense that defendant did not have all his testimony at the second trial, and still the verdict was then against him, while before it had been in his favor. Further, we have none of the testimony on the former trial before us; we know nothing as to the course of the evidence, the number or names of the witnesses. .Perhaps the plaintiff had brought nearly all his neighbors in as witnesses, and it was manifest he had been diligent in securing testimony. Perhaps the line of defendant’s testimony ran directly counter to what had been manifestly the common understanding of the neighborhood, and the plaintiff, surprised by such testimony, was not prepared to disprove the substance of it. Of course this is mere conjecture, but it only serves to show how illy informed we must, in the nature of things, be upon matters like this, and why so much reliance must be placed on the discretion of the trial judge. No reviewing court can possibly be fully possessed of the information he has, and when his ruling does not finally conclude the parties, but simply gives each another chance to present his case to a jury — and especially when the subsequent trial, in which there is no pretense of a lack of testimony on either side, practically sustains his action in setting aside the former verdict — a reviewing court will be very loath to reverse such ruling and uphold the former verdict as a finality.
For similar reasons, his ruling upon the question of costs must be sustained. We have nothing to add to the remarks ■ made upon this question of costs on new trial in the case of N. C. C. M. & S. Co. v. Eakins, 23 Kas. 318. But we do not know that the victorious party in this case was without fault. It would seem to us, from all the insight we have into the facts of the former trial, that the costs of that trial should have been taxed against the plaintiff; but where a ruling which rests so largely in the discretion of the court is challenged, it should appear not only that the ruling may have been wrong, but also that it must have been. All presumptions sustain it. The silence of the record sustains it. All doubts go in its favor.
We pass now to the questions raised upon the second trial. The action was brought under chapter 118 of the Compiled Laws of 1879. A similar statute was before this court for consideration in Emerson v. Gardiner, 8 Kas.455, and in that case it was said, “ If fire is set to woods, marshes or prairies, then there can be a recovery under the statute, and the test of liability will be, did the defendant set the fire?” Of course, this “setting on fire” must be the direct intentional act of the defendant, as explained in the M. K. & T. Rly. Co. v. Davidson, 14 Kas. 349, and not an unavoidable accident. So far, then, as the liability of the defendant is concerned, the simple question was, did the defendant intentionally, and not in firing against fire, set the prairie on fire? If he did, and that fire destroyed plaintiff’s property, he is liable. No element of willfulness or negligence enters. He may not have thought of injui’ing his neighbor, and he may have been guilty of no negligence. Yet if he intentionally set the prairie on fire, he must pay for the damage done by such fire. This question the court placed distinctly before the jury in its charge. They found against the defendant. The testimony will sustain while it may not compel such a conclusion. Beyond question, he started a prairie fire on the morning of the day that this damage was done. He admits that. This was in close proximity to a house he was building. This fire he claims to have fully extinguished. Later in the morning the grass is found to be on fire a short distance off, and, spreading with great rapidity, does the damage. Now the theory of the plaintiff was, that the fire started by defendant was nof fully extinguished, but ran along the grass unnoticed by him for a while until, driven by the rising wind, it spread into a large and devouring flame; and there was testimony tending to sustain this theory. And we cannot hold that the jury were bound to find against it. The only exception to the charge of the court was a general exception to it as a whole, and is available therefore only in case its general scope and drift are erroneous. (Sumner v. Blair, 9 Kas. 521; Ferguson v. Graves, 12 Kas. 39; Wheeler v. Joy, 15 Kas. 389.) And we see no reason to doubt the general accuracy of the charge. It seems to cover the entire ground, and presents the question fairly to the jury..
Taking the case as a whole, we see no material error, nothing prejudicing the substantial rights of the defendant, and therefore the judgment must be affirmed.
All the Justices concurring.
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Green, J.:
Maurice L. Gillon appeals from his jury conviction of possession of a sawed-off shotgun. On appeal, Gillon argues that the trial court erred in refusing to instruct the jury on the defense of mistake of fact. We disagree and affirm.
Although Gillon testified that he sawed off the barrel to its 15 % inch length, he maintained that he did not know that the barrel length was under 18 inches. Gillon requested a jury instruction on the defense of ignorance or mistake of fact. Finding the instruction inapplicable, the trial court declined to give the instruction. We must determine whether such an instruction was required under K.S.A. 1996 Supp. 21-4201(a)(7).
K.S.A. 1996 Supp. 21-4201(a)(7) prohibits “knowingly . . . possessing or cariying a shotgun with a barrel less than 18 inches in length.” Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. See State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).
The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature controls where ascertainable from the statute. Judicial interpretations must be reasonable and sensible to effectuate the legislature’s true intent. State v. Lifer, 20 Kan. App. 2d 12, 14-15, 881 P.2d 589, rev. denied 256 Kan. 996 (1994). In K.S.A. 1996 Supp. 21-4201(a)(7), the adverb “knowingly” modifies the verbs “possessing or carrying.” The prepositional phrase “with a barrel less than 18 inches in length” is an adjective modifier, modifying the noun “shotgun.” As a result, the adverb “knowingly” does not modify the prepositional phrase. This reasoning is supported by State v. Swafford, 20 Kan. App. 2d 563, 890 P.2d 368, rev. denied 257 Kan. 1095 (1995).
In Swafford, the defendant was convicted of two counts of sale of cocaine within 1,000 feet of a school. On appeal, the defendant argued that the State was required to prove that he knew his illegal drug sales occurred within 1,000 feet of a school. In rejecting this argument, the Swafford court stated that “Swafford’s knowledge of the proximity of a school is not an essential element of the crime of selling cocaine within 1,000 feet of a school under [K.S.A.] 65-4127a(c).” 20 Kan. App. 2d at 567. Likewise, the same reasoning applies to the present case. Gillon’s knowledge of the length of the shotgun’s barrel was not an essential element of the crime. To the contrary, Gillon’s knowingly possessing the shotgun was the essential element of the crime.
Finally, if the legislature had wanted to require that possessors of sawed-off shotguns know of their weapons’ illegal features, K.S.A. 1996 Supp. 21-4201(a)(7) would prohibit “knowingly . . . possessing or carrying a shotgun with a barrel that the . . . possessor or carrier knows is less than 18 inches in length.” Because the statute was not written this way, the trial court properly refused Gillon’s request for an instruction on the defense of ignorance or mistake of fact regarding the barrel’s length.
Next, Gillon argues that insufficient evidence existed to support his conviction of possession of a sawed-off shotgun. He argues that the State failed to prove that he knew the gun barrel’s length was shorter than 18 inches. When the sufficiency of the evidence is challenged, 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 factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Claiborne, 262 Kan. 416, 425, 940 P.2d 27 (1997).
Gillon’s argument is fatally flawed. Because the statute does not require that Gillon know that the shotgun barrel’s length was less than 18 inches, his argument fails.
Affirmed.
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Lewis, J.:
This appeal involves two consolidated cases and defendant’s convictions in both cases. In case No. 95-CR-214, defendant appeals from his conviction for robbery, for which he re ceived a sentence of 61 months. In case No. 95-TR-1371, defendant appeals from his conviction as a habitual violator for driving while his license was revoked. Defendant was ordered to serve a 12-month sentence in the custody of the Secretary of Corrections, and that sentence was to run consecutive to his sentence in the robbery conviction.
CASE NO. 95-CR-214
Defendant was convicted of robbery in this case and argues, among other things, that the evidence was insufficient to sustain his conviction.
The crime of robbery is defined by K.S.A. 21-3426 as follows: “Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person .” (Emphasis added.)
Defendant’s argument on appeal is that the evidence did not show that he forced or threatened bodily harm to take property from the victim. He therefore argues that this crime was, at the very most, a theft and that we should reverse his robbery conviction and remand for sentencing on a theft conviction.
June Huston walked into her office on the day in question and found a stranger leaning over her desk and looking into the drawer where she kept her purse. Defendant was that stranger.
Huston asked defendant what he was doing and received an equivocal answer. She then emphatically told defendant to stay in her office while she checked her purse, and he did so. Huston checked her purse, discovered cash missing, and accused defendant of taking it. Defendant then advised Huston that he had to go, and he left the office and began walking quickly down the hall and up the stairs of the courthouse.
As defendant walked out the door of the office, Huston followed him down the hallways at a distance of 6 to 8 feet. When they reached an entrance to the first floor of the courthouse, defendant went through the entrance ahead of Huston. When Huston attempted to pass, the door slammed abruptly back, hitting her in the shoulder and head and knocking off her glasses. By the time Huston had recovered from her contact with the door, defendant was nowhere to be seen.
After reporting these events to. the sheriff, Huston encountered defendant again on the sidewalk. She again accused him of taking her money, and he denied it and offered her a $100 bill. She told defendant to wait for the sheriff, but he declined and left in a car driven by Barbara Tomich.
Later that day, an address book belonging to Huston was found at a construction site, and it contained the missing cash.
Based on this highly summarized version of the facts, defendant was convicted of robbery and sentenced to an upward departure of 61 months.
Defendant’s principal argument is that there was no evidence at trial to indicate that force or threat of bodily harm was used by him to take Huston’s property.
Initially, we find that a rational factfinder could have concluded beyond a reasonable doubt that defendant stole Huston’s money and that defendant pushed the courthouse door backwards into Huston’s face in an effort to dissuade her from continuing her pursuit. The question is whether the force applied occurred during the robbery or after a theft had been completed.
To prove robbery, it must be shown that property was taken from another either by force or by threat of bodily harm. State v. Aldershof, 220 Kan. 798, 800, 556 P.2d 371 (1976). A taking is complete when the thief has obtained the complete, independent, and absolute possession and control of the property of another. State v. Long, 234 Kan. 580, 585, 675 P.2d 832 (1984), overruled in part on other grounds State v. Keeler, 238 Kan. 356, 365, 710 P.2d 1279 (1985).
In the instant matter, the evidence indicates that defendant did not threaten Huston, nor did he use physical force in taking the money out of her purse. The only force involved in this case is defendant’s act of slamming a door shut in the face of the pursuing victim, thus causing her some physical injury and further causing her to' temporarily abandon the effort of recovering her property from defendant.
Was the slamming of the door in Huston’s face sufficient force to convert the crime of theft into one of robbery? Ultimately, we must decide whether the taking of the property had been completed prior to the application of force.
We have a number of Supreme Court cases on this issue. However, the resolution of the issue depends primarily on the facts of each case. Our Supreme Court in State v. Long, 234 Kan. at 583, said: “Prior Kansas cases are not in accord with one another and as such do not provide much assistance in determining when a taking is completed.”
However, there are some principles of law which we believe apply to the instant matter. In State v. Miller, 53 Kan. 324, 328, 36 Pac. 751 (1894), the court said:
“Nice questions may and do arise as to just when the possession of the owner of articles not attached to his person, but under his immediate charge and control, is divested, and it may well he doubted whether a thief can be said to have taken peaceable possession of money or other thing of value in the presence of the owner, when the taking is instantly resisted by the owner, before the thief is able to remove it from his premises or from his immediate presence.” (Emphasis added.)
Some 90 years later, the Kansas Supreme Court in State v. Long, 234 Kan. 580, Syl. ¶ 2, said:
“A thief does not obtain the complete, independent and absolute possession and control of the money or property adverse to the rights of the owner necessary to constitute a taking where the taking of the property is immediately resisted by the owner before the thief can remove it from the premises or from the owners presence.” (Emphasis added.)
This rule was most recently applied by the Supreme Court in State v. Dean, 250 Kan. 257, Syl. ¶ 4, 824 P.2d 978 (1992).
In this case, the evidence shows that the taking of the property was immediately resisted by the owner of the property, who pursued defendant until he slammed the door in her face.
In State v. Dean, the initial possession of the thief was a good deal more secure than it was in the case at bar. In Dean, the defendant ordered and was given $3 worth of gasoline pumped into his car. After the gasoline had been pumped, the station owner asked for payment, and the defendant put his hand in his pocket and made it appear as if he had a gun. Upon sighting the alleged "weapon,” the owner was dissuaded from continuing to stop the defendant from leaving without paying for the gas, and the defendant drove away. The Supreme Court reversed the trial court, which had dismissed the defendant’s robbery charge following the preliminary hearing, and said:
“In the case currently under consideration, the State contends the facts are analogous to Long. The State claims that although Kwon voluntarily pumped gasoline into the vehicle, Dean could not exercise complete control and dominion over the gasoline until Dean threatened Kwon with what appeared to be a weapon to take the property from the presence of Kwon; thus, the taking was incomplete until force was used.” 250 Kan. at 260.
In this case, Huston found defendant reaching into a drawer in her desk. She immediately resisted any further efforts on his part by telling him to stand away from the desk until she checked to see if any money was missing. As soon as Huston announced money was missing, defendant left the room with Huston in hot pursuit behind him. As we read the record, Huston followed defendant down the hall and down the steps of the courthouse, never being more than 6 to 8 feet behind him. In our judgment, defendant was unable to remove the property from the presence of the pursuing owner until he slammed the door in her face. The slamming of the door in her face was an act of force and results in defendant being guilty of robbery. The theft in this case was not complete, defendant’s possession was imperfect, and his control of the stolen money was qualified by the immediate pursuit of the owner. See State v. Dean, 250 Kan. 257, Syl. ¶ 3. Defendant was required to use force to make the theft complete, and he is guilty of the crime of robbery.
In reaching this decision, we rely on State v. Long, State v. Dean, and State v. Miller. Those cases all emphasize that a taking in the presence of an owner is not complete if the taking is immediately resisted by the owner before the thief is able to remove it from the premises. In this case, the theft took place in a small office in the courthouse. Defendant was, at all times after he left her office, pursued by the owner, who was seeking to retrieve her properly. We have no need to decide whether the money was removed from the premises because defendant did not remove the ill-gotten gains from the presence of the owner until he shut the door in her face and stopped her pursuit. The fact is, the theft was immediately resisted and continued to be resisted until defendant slammed the door in Huston’s face.
We hold that defendant’s possession and control of Huston’s property was incomplete until he slammed the door in her face, which converted what might have been a common theft into a robbery.
We affirm defendant’s conviction on the charge of robbery.
INSTRUCTIONS
Defendant next argues that the trial court erred in failing to instruct the jury on the lesser included offense of battery.
Defendant requested an instruction on the crime of battery, which the trial court refused and said:
“THE COURT: In this instance the only contact alleged is the door and that is alleged in the context of force, not physical, great physical injury or disfigurement. I don’t see how we could apply the battery instruction to this case because if the elements of battery and theft are met, then the primary charge of robbery is indicated, because it contains both elements. For that reason that instruction, lesser included’s not given by the Court.”
We agree with the trial court. A similar issue was raised in State v. Shortey, 256 Kan. 166, 884 P.2d 426 (1994). In that case, defendant was convicted of aggravated robbery and argued on appeal that the trial court’s failure to give a battery instruction was reversible error. The Supreme Court found no error and said:
“In State v. Clardy, 252 Kan. 541, 847 P.2d 694 (1993), defendant was charged and convicted of one count of aggravated robbery. He contended on appeal that he was entitled to a jury instruction on battery as a lesser included offense of aggravated robbery. Defendant denied any intent to rob the victim and denied seeing the victim robbed by defendant’s companions. The evidence showed that defendant struck the victim. There was no evidence that defendant took any money from the victim. 252 Kan. at 541-45. We reversed, reasoning:
“ ‘Under K.S.A. 21-3107(3), the defendant in a criminal prosecution has a right to have the court instruct the jury on all lesser included offenses established by substantial evidence. Where there is no substantial testimony applicable to the lesser degrees of the offense charged, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary. State v. Deavers, 252 Kan. 149, 154-55, 843 P.2d 695 (1992).
“ “When an information alleges a robbery was accomplished by force and that bodily harm was inflicted in the course of the robbery, battery will not be a lesser included offense of the aggravated robbery unless there is substantial evidence to prove the lesser offense of battery has been committed. Under the particular circumstances of this case, there is substantial evidence that the lesser degree of the offense charged had been committed, and an instruction on battery as a lesser included offense was required.’ 252 Kan. at 547.” 256 Kan. at 171-72.
The court goes on to say:
“Clardy is distinguishable on its facts. The victim’s testimony herein clearly establishes that an aggravated robbery occurred — as does defendant’s own testimony. Under either version, defendant was able to take and intentionally did take the currency and coin changer from the person of Davis as the direct result of the beating he was inflicting upon Davis. We find no error in the trial court’s failure to instruct on aggravated battery or battery under K.S.A. 21-3107.” 256 Kan. at 172.
In this case, considering all of the evidence, we conclude that the offense, if committed, was clearly of the higher degree and, as a result, instructions relating to the lesser degree of the offense were not necessary.
EXCULPATORY EVIDENCE
A key player in the entire scenario was Barbara Tomich. Tomich appears to have been defendant’s girlfriend and was involved, to some extent, in aiding defendant to escape from the owner of the property and from the scene of the crime.
Apparently, on the night before trial, Tomich told one of the detectives that she was the person who took the money from Huston’s purse. Defendant’s attorney argues that he was not aware of this alleged confession until after defendant’s trial. He accuses the State of withholding exculpatory evidence and, on that basis, asks that we order a new trial.
“ ‘Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant.’ ” State v. Aikins, 261 Kan. 346, 381, 932 P.2d 408 (1997). Due process requires the prosecution to disclose material evidence favorable to the accused. State v. Humphrey, 258 Kan. 351, 355, 905 P.2d 664, modified 258 Kan. 372, 905 P.2d 664 (1995).
To justify reversal of a conviction for failure to disclose evidence, the evidence withheld must be clearly exculpatory and the withholding of the evidence must have been clearly prejudicial to a defendant. In order to be prejudicial, the evidence must have prejudiced a defendant’s ability to defend against the charges. The evidence is material only if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the trial would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome of the trial. 258 Kan. at 355.
The evidence against defendant is simply overwhelming. Huston discovered him in her office, leaning over the desk drawer where she kept her money. Huston then checked her purse and found that her money was missing, and defendant quickly retreated from Huston’s office with Huston in hot pursuit. The evidence is so overwhelming that we hold that defendant was not prejudiced by the withholding of Tomich’s attempt to confess to the crime. We conclude that even had that evidence been offered by the defendant, there exists no chance that the jury would have returned a different verdict.
This issue was raised by defendant on his motion for a new trial. “Appellate review' of an order denying a new trial is limited to whether the trial court abused its discretion.” Taylor v. State, 251 Kan. 272, 277, 834 P.2d 1325 (1992). We have reviewed the record in this matter and conclude that the trial court did not abuse its discretion in denying defendant’s motion for a new trial.
CUMULATIVE ERROR
Finally, defendant seeks to dislodge his robbery conviction by arguing cumulative trial error.
“ ‘ “Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied him a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.” ’ ” State v. Castoreno, 255 Kan. 401, 411, 874 P.2d 1173 (1994) (quoting State v. Lumbrera, 252 Kan. 54, 57, 845 P.2d 609 [1992]).
We do not hesitate to hold that defendant was not denied a fair trial because of cumulative trial errors.
CASE NO. 95-TR-1371
This appeal arises from the events which took place late in September 1995. On the day in question, a City of Perry police officer observed defendant backing his car onto a street and “throwing gravel.” Defendant then put the car in drive and sped down the street, where he almost collided with the police officer’s car.
The officer in the patrol car stopped defendant for reckless driving and asked him for his driver’s license. Defendant replied that he had no driver’s license. The officer asked him to clarify whether he did not have his license with him or whether he had no license at all. Defendant then said, “No, I have no driver’s license.”
The fact is, defendant’s driver’s license had been revoked.
Defendant’s explanation for his driving on the date in question is that his adult brother was lost, he was afraid for his brother’s safety, and he was, therefore, compelled to drive. He makes this argument despite the fact that Tomich was in the passenger seat beside him all the time he was driving in fear of his brother’s safety.
SUFFICIENCY OF THE EVIDENCE
Defendant first argues that a conviction under the habitual violator statute requires a finding of criminal intent and that there was no such evidence because he was compelled by a family emergency to drive while prohibited.
K.S.A. 21-3201(a) provides:
“Except as otherwise provided, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was intentional or reckless. Proof of intentional conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner.” (Emphasis added.)
In this case, there is absolutely no question that defendant was aware that his driver’s license had been suspended and that it was a crime for him to be driving the vehicle. At one point, defendant was asked:
“Q. Prior to this incident in September did you have any knowledge that your license had been revoked.
“A. I knew they were — I knew they were suspended.”
Later, under cross-examination, defendant testified as follows:
“Q. Mr. Bateson, you stated that you knew that you were revoked when you were driving when officer Sloniger stopped you?
“A. I knew that I was suspended.
“Q. You knew that you were suspended?
“A. Right.
“Q. Driving — or suspending your driver’s license means you’re not supposed to drive; right?
“A. Right.
“Q. And you knew that; right?
“A. Yes.
“Q. And — okay. Now, you stated also that you shouldn’t have been where you were at that time. That’s because you knew that you were suspended; isn’t that right?
“A. I knew that I shouldn’t have been behind the wheel, yes.”
Defendant has admitted under oath that on the date in question that his driver’s license had been suspended. On the basis of defendant’s own testimony, there is no question that he possessed the requisite criminal intent in driving a motor vehicle on the streets of the City of Perry, Kansas, when he knew that his driver’s license had been revoked.
COMPULSION
Defendant asserts that he is not guilty of driving as a habitual violator and asserts the compulsion defense.
The compulsion defense, found in K.S.A. 21-3209, is analyzed in State v. Davis, 256 Kan. 1, 883 P.2d 735 (1994).
We do not intend to prolong the opinion by discussing the compulsion defense. That defense is simply not available to defendant in this case. As we pointed out earlier, Tomich, who had been driving the car earlier that day, was seated in the passenger seat when defendant was stopped by the police officer. There is absolutely no evidence that Tomich could not have driven the vehicle in the search for defendant’s brother. In spite of having someone available to drive legally, defendant decided to drive despite the fact he knew he did not have a valid driver’s license. The compulsion defense is not available under these facts.
Did the trial court err in failing to instruct the jury on compulsion? From what we have said in the section of this opinion immediately above, we hold that the trial court did not err in failing to instruct the jury on compulsion.
DO K.S.A. 1995 SUPP. 8-286 AND K.S.A. 1995 SUPP. 8-287 PROVIDE ADEQUATE NOTICE TO PROTECT A DRIVER’S RIGHTS TO DUE PROCESS?
Finally, defendant contends that the notification procedures in the statutes cited above are insufficient to satisfy the requirements of due process.
This issue has been decided adversely to the position of defendant by the Supreme Court in State v. Lewis, 263 Kan. 843, Syl. ¶ 10, 953 P.2d 1016 (1998). In Lewis, the Supreme Court held that the notice provision contained in the habitual violator statutes comport with notice requirements of the Due Process Clause of the United States Constitution. This renders defendant’s argument on this issue without merit.
Affirmed.
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PlERRON, J:
Maurice Mosley was convicted of one count each of aggravated battery, a severity level 7 person felony, and interference with a witness, a class B person misdemeanor.
At trial, evidence indicated that Mosley had attended a birthday party for his girl friend. William Miller also attended the party. Miller and Mosley had a contentious past. Miller had shot Mosley in 1992, following a disagreement. Mosley testified he was afraid of Miller and was frightened when Miller arrived at the party. Evidence indicated Mosley had approached Miller, pulled out a gun, and beat Miller’s head with it. Mosley testified it had been Miller who pulled a gun and he had wrestled it away from Miller and then beat Miller with his fist.
The jury disbelieved Mosley’s version of the events and found him guilty of aggravated battery. He was also found guilty of interference with a witness. Mosley appeals his convictions and sentence. We note the jury also found Mosley guilty of criminal possession of a firearm; however, the district court granted Mosley’s motion for judgment of acquittal on that charge.
Mosley first argues the trial court erred in failing to inquire into his dissatisfaction with his retained counsel and in failing to allow him to obtain substitute counsel. The standard of review where the trial court denies a defendant’s request for new appointed counsel is abuse of discretion. State v. Cromwell, 253 Kan. 495, 499, 856 P.2d 1299 (1993). In State v. Kirk, 208 Kan. 645, 647, 493 P.2d 233 (1972), the court indicated this standard applies also when the defendant’s counsel is retained. Thus, the decision to allow a substitution of counsel is a matter left to the trial court’s discretion. Cromwell, 253 Kan. at 499.
After the State presented its case in chief, Mosley’s retained attorney told the trial court that Mosley had some concerns regarding her representation. The nature of those concerns is not apparent from the record. Mosley may have been concerned about his representation in connection with a plea bargain he did not accept. Further, Mosley was concerned about a letter he had written and mailed from the Wyandotte County Detention Center that was introduced at trial. This letter was the basis of the interference with a witness charge. The exchange between Mosley s attorney and the court occurred as follows:
“MS. JACKSON: In addition, he would, of course, have some concerns with my representation of him. The letter that has been put into evidence that was written around the time of the preliminaiy hearing, I have explained to him, in my opinion, should not have been written. It was not even in existence at the time that I took the case on. And I do feel that it changed the complexion of the case. I have stated these things because I want them to be on the record so that if and when the time presents itself, I can ask the court reporter to transcribe these particular notes. And I am not certain, Judge, if Mr. Mosley would like to make a statement to you now.
“THE COURT: Well, there’s nothing to say, I mean—
“MS. JACKSON: He—
“THE COURT: I mean, once he has an attorney, he is stuck with representation by the attorney.
“MS. JACKSON: Um-hum.”
Mosley now argues the district court erred in failing to inquire about the conflict and in assuming no remedy was available to him. On this he is correct. The rules regarding dismissal of appointed counsel have been set out in many cases. This case involves the dismissal of retained counsel. Nevertheless, the framework for analyzing whether the trial court abused its discretion in disallowing a change in appointed counsel will be used here to guide the discussion.
In State v. Saeger, 13 Kan. App. 2d 723, 724, 779 P.2d 37 (1989), the Kansas Court of Appeals adopted the analysis set out in United States v. Gallop, 838 F.2d 105, 108 (4th Cir.), cert. denied 487 U.S. 1211 (1988), which was used to determine whether the trial court abused its discretion in denying a defendant’s request for a new court-appointed attorney. The factors an appellate court should evaluate in answering this question are timeliness of the motion to change counsel, adequacy of the trial court’s inquiry into the defendant’s complaint, and whether the conflict between the attorney and the client was so severe that it resulted in a total lack of communication, preventing an adequate defense. 13 Kan. App. 2d at 724.
Aside from the fact that Mosley never filed a formal motion, his counsel first mentioned a possible conflict in the middle of the trial. Thus, the motion was probably untimely. In State v. Kirk, 208 Kan. at 646-47, the court briefly discussed a situation where the defendant, in the middle of trial, asked to have his retained counsel dismissed so he could hire another.
“We glean from the record that while Mr. Kirk was on the witness stand he asked for the dismissal of his attorney and the appointment of another counsel, stating he had been led to believe his case was not going to be brought to trial. Apparently this request was denied by the court. This was proper we believe, for trial was in progress.
“We cannot quarrel with the defendant’s general assertion that for good cause shown an accused should be permitted to secure new counsel when he no longer has faith in the old. However, the time for a change of horses is hardly while the wagon is resting in midstream. At this point in any trial, a court must exercise its best judgment under all the circumstances, and this we believe was done.” 208 Kan at 646-47.
Mosley also argues the trial court erred in failing to inquire about the conflict and that such an error violates his Sixth Amendment right to effective assistance of counsel. The extent of the inquiry that is necessary has not been fully addressed in Kansas. However, one case involving appointed counsel has discussed the question.
In State v. Richardson, 256 Kan. 69, 82, 883 P.2d 1107 (1994), Richardson argued the trial court’s inquiry into the conflict between him and his appointed counsel was insufficient. The court acknowledged that guidance from case law regarding the type of inquiry necessary was lacking. Ultimately, the court decided the trial court did not abuse its discretion in failing to appoint new counsel. In reaching its decision, the court noted that defense counsel first told the trial court about the conflict. The trial court then asked defendant to explain why he was unsatisfied with his counsel. The trial court found defendant’s dissatisfaction was baseless and explained its finding. Finally, the trial court gave defendant and his counsel time to try to come to an understanding so the attorney-client relationship could be maintained.
The problem here is that the trial court never allowed Mosley an opportunity to explain his perception of the conflict. The United States Supreme Court has indicated that where the trial court becomes aware of a possible conflict of interest between an attorney and client, the court must inquire. Wood v. Georgia, 450 U.S. 261, 272, 67 L. Ed. 2d 220, 101 S. Ct. 1097 (1981). The Wood court explained:
“[T]he record does demonstrate that the possibility of a conflict of interest was sufficiendy apparent at the time of the . . . hearing to impose upon the court a duty to inquire further. . . . Any doubt as to whether the court should have been aware of die problem is dispelled by the fact that the State raised the conflict problem explicitiy and requested that the court look into it.” 450 U.S. at 272-73.
The Wood court also characterized an earlier decision, Cuyler v. Sullivan, 446 U.S. 335, 347, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980), as “mandat[ing] a reversal when the trial court has failed to make an inquiry even though it ‘knows or reasonably should know that a particular conflict exists.’ ” 450 U.S. at 272, n.18. Thus, it is an abuse of discretion where a trial judge, after becoming aware of a potential conflict between an attorney and client, fails to inquire further.
The final factor we must consider is whether the conflict between the attorney and the client was so severe that it resulted in a total lack of communication, preventing an adequate defense. However, this factor is impossible to evaluate because Mosley’s description of the conflict is vague. Mosley was not permitted to offer a description of the conflict at trial and has not done so subsequently.
The conflict between Mosley and his attorney was not brought to the attention of the trial judge until the State rested its case. At that point, there is little chance any defendant would be permitted to secure the assistance of a new attorney. However, unless there is no chance a defendant would be allowed to do so, the trial court abused its discretion in failing to inquire further into the nature of the conflict after becoming aware of its existence.
At this time, though, there is no evidence in the record, or even a clear allegation by Mosley, as to the nature and extent of the supposed conflict. While the trial court was clearly wrong in saying Mosley was unalterably “stuck” with his trial counsel, we cannot assume there was a serious enough problem that would have required the substitution of counsel. This is particularly true of the point in time the vague complaint was made. We also note no proffer was presented to the court concerning the alleged com munication breakdown. Neither was there any other procedural effort made to preserve the factual basis of Mosley’s complaint.
Mosley is not without a remedy even though this issue cannot now be addressed on direct appeal. He still has the avenue of a proceeding under K.S.A. 60-1507, assuming there are facts to support it.
Mosley next argues the State made three improper comments during dosing arguments.
“In Kansas, the general rules pertaining to prosecutorial misconduct are clear:
‘Improper remarks made in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and deny him a fair trial. [Citation omitted.] The prosecutor is entitled to considerable latitude in arguing the case to a jury. There is no prejudicial error where the questionable statements of a prosecuting attorney are provoked and made in response to previous arguments or statements of defense counsel. [Citation omitted.] Since Kansas does not follow the “plain error” rule used in federal courts, reversible error cannot be predicated upon a complaint of misconduct of counsel during closing argument where no contemporaneous objection is lodged. [Citation omitted.] Remarks made by the prosecutor in closing argument are harmless error if the court finds that the error had little likelihood of changing the result of the trial.’
State v. Baker, 249 Kan. 431, 446, 819 P.2d 1173 (1991).” State v. Sexton, 256 Kan. 344, 362-63, 886 P.2d 811 (1994).
The three comments made by the prosecutor and now objected to by Mosley are:
“Well, the fact of the matter is, ladies and gendemen, my witnesses were telling the truth, okay?”
“Ladies and gendemen of the jury, the title of this case isn’t State vs. William Miller. It’s State vs. Maurice Mosley, and don’t let the defendant confuse you about who’s on trial. And that’s his whole game anyway, ladies and gendemen, is to confuse you about the evidence, okay?”
“And they want you to focus on, again, the inconsistencies in the statements, but I guarantee you, ladies and gentlemen, if my witnesses would have come up here and had the exact same story, they would have yelled conspiracy, okay?”
No contemporaneous objection was made following any of these statements. It has been repeatedly held that “ ‘reversible error cannot be predicated upon a complaint of misconduct of counsel during argument where no contemporaneous objection is lodged.’ ” 256 Kan. at 363 (quoting State v. Bird, 238 Kan. 160, 179, 708 P.2d 946 [1985]).
We also believe that the comments, although perilously close, were not so egregious as to require a reversal.
We wish to remind trial advocates that final argument is a crucial and delicate time of the trial. It is extremely dangerous to allow zealousness to be given too loose a rein. Fair comment on trial tactics and the interpretation of evidence is appropriate in argument to the jury. But, care must be exercised not to inappropriately denigrate opposing counsel or inject personal evaluations of the honesty of witnesses.
Mosley finally contends the trial court erred in accepting his proposed criminal history. The following exchange occurred at Mosley’s sentencing:
“THE COURT: Sir, have you talked to your lawyer about your criminal history?
“MR. MOSLEY: No, I didn’t get a chance to talk to her. I just—
“THE COURT: Well, is it true, sir, you have at least three or more person felonies that I have to consider?
“MR. MOSLEY: That’s what I was — I was asking them about. I am just now getting a chance to talk to her on any of this stuff. I don’t even recall having no three person felonies. Only thing I went to prison for the attempted rape and my failure to appear. I didn’t make the court in time, so I got aggravated failure to appear. Then on this other — on this other one is this new charge and on here— it’s on there. They got stuff on there that I don’t recall any of it — having any of it.
“THE COURT: Sir, did you get convicted of a robbery in juvenile court back in 1980?
“MR. MOSLEY: I was with some guys in the car. They got — they got charged with that. I had to go to court behind—
“MS. JACKSON: I recall, Judge — I represented Mr. Mosley back in 1980 and that is correct. He doesn’t recall, but—
“MR. MOSLEY: No, I recall that.
“MS. JACKSON: —that is accurate.
“THE COURT: Well, let me back up for the State. According to this criminal history, there is one person felony— let me see. We’ve got the burglary now. What about the burglary? We haven’t talked about that. Then, sir, it looks like you were charged with a — with a burglary in Wyandotte County. Do you want me to pull the file for you?
“MR. MOSLEY: When was that at?
“MS. JACKSON: Judge, I have just confirmed — that’s the one I have just reminded you of your co-defendants in that case.
“MR. MOSLEY: Oh, yeah.
“MS. JACKSON: He didn’t recall, but your memory has been refreshed. You do remember, Mr.—
“MR. MOSLEY: That’s—
“MS. JACKSON: Anthony Frasier, Mr. Jackson, and Mr. Stallings, the court— defendants in that case?
“MR. MOSLEY: That’s when I did my time was ‘82?
“THE COURT: You did time for burglary and an attempted rape, is that right, sir?
“MR. MOSLEY: Yes, ma’am, that’s all I had. I done my time for that.
“THE COURT: Okay, sir, I understand you did time, but for purposes of my sentencing today, we categorize your criminal history and it’s extensive whether it’s misdemeanors or person felonies or non-person felonies. And, sir, you are in the worst criminal history category there is. You would be considered probably— you know, like I said, it’s the worst criminal history you could have in Kansas.”
Mosley argues the court erred in determining he had admitted his criminal history, and instead should have conducted a hearing to establish his criminal history. This issue involves interpretation of the Kansas Sentencing Guidelines Act (KSGA). Interpretation of the KSGA is a question of law and the appellate court’s scope of review is unlimited. State v. Miller, 260 Kan. 892, 895, 926 P.2d 652 (1996).
K.S.A. 21-4715 sets out the procedure for proving a defendant’s criminal history when the defendant objects to the proposed criminal history. K.S.A. 21-4715 states:
“(a) The offender’s criminal history shall be admitted in open court by the offender or determined by a preponderance of the evidence at the sentencing hearing by the sentencing judge.
“(b) Except to the extent disputed in accordance with subsection (c), the summary of the offender’s criminal history prepared for the court by the state shall satisfy the state’s burden of proof regarding an offender’s criminal history.
“(c) Upon receipt of the criminal history worksheet prepared for the court, the offender shall immediately notify the district attorney and the court with written notice of any error in the proposed criminal history worksheet. The state shall have the burden of producing further evidence to satisfy its burden of proof regarding any disputed part, or parts, of the criminal history and the sentencing judge shall allow the state reasonable time to produce such evidence to establish the disputed portion of the criminal history by a preponderance of the evidence.”
Pursuant to subsection (c), Mosley was required to make written objection to his proposed criminal history if he wished to challenge it. However, the presentence investigation (PSI) report shows it was submitted on April 9, 1996. The sentencing hearing was held on April 10, 1996. Therefore, Mosley probably did not receive the PSI report in time to make a written objection to the proposed criminal history. Thus, under these circumstances, his failure to make a written objection should not preclude him from challenging his criminal history.
The question then becomes whether the court erred in determining that Mosley admitted his criminal history when he had initially objected to the criminal history. Mosley argues it was improper for his counsel to essentially admit to his criminal history in light of his objection. He cites State v. Hankins, 19 Kan. App. 2d 1036, 1047, 880 P.2d 271 (1994), wherein this court stated:
“K.S.A. 1993 Supp. 21-4715 clearly provides that the State has the burden to prove a defendant’s criminal history unless the offender admits his or her criminal history in open court. It is not defense counsel’s place to admit to his or her client’s prior offenses. It is defense counsel’s responsibility to represent the defendant and to hold the State to meeting its burden of proof. Defense counsel has an obligation to protect the defendant’s rights and to ensure that the procedures employed in any case comply with due process.”
The State argues Mosley, during the sentencing hearing, did admit to the proposed criminal history, and, therefore, his argument should fail. However, the procedure used at sentencing was not appropriate. The PSI report should have been available prior to April 9, 1 day before sentencing. Also, Mosley’s attorney should have had the opportunity to discuss the proposed criminal history with Mosley prior to the sentencing hearing.
Nonetheless, during sentencing, Mosley did admit to his criminal history, specifically, his three prior person felonies. K.S.'A. 21-4715 provides that if Mosley admitted his criminal history in court, the criminal history as summarized in the PSI report shall satisfy the State’s burden of proof. Mosley admitted his criminal history, and therefore the criminal history was proved by the State in accordance with K.S.A. 21-4715, and Mosley cannot prevail on this issue.
We note Mosley does not contend the criminal history is incorrect.
We are aware of the press of work on the trial courts of this state. However, difficult as it might be at times, criminal proceedings must be conducted with a reasonable concern for the rights of criminal defendants. In the present case, it appears there really was no substantive disagreement with the criminal histoiy, once there was time to review and discuss it. But, we must stress that in the rush to deal with ever increasing case loads, we cannot sacrifice the appropriate need for orderly process.
Where the State has the burden to prove criminal history when there is a dispute, requiring the defendant to essentially consult with counsel on the record and at the hearing is inappropriate, although no prejudice might result.
Affirmed.
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Russell, J.:
Lori Denk appeals the district court’s order in a paternity action that her minor son’s surname be changed from Denk to Taylor.
Colton Denk was bom on July 16, 1996, to Denk, who was not married. In October 1996, Denk filed a paternity action against Jason Taylor, alleging that he was the father of Colton. Her petition asked that paternity be established and that Taylor be ordered to pay child support for Colton. DNA testing determined to a 99.75 percent probability that Taylor was the father of Colton.
In an order filed November 26,1996, the district court declared that Taylor was Colton’s father and ordered him to pay child support in the amount of $227 per month. The district court further ordered supervised visitation for Taylor and Colton and set a schedule for the visitation.
On July 2, 1997, the district court held a hearing on matters reserved from the November 26,1996, hearing and a hearing held on March 21, 1997. The parties announced that they had reached an agreement on all matters except whether Colton’s surname should be changed to Taylor and how the fee to correct Colton’s birth certificate should be divided between the parties. At the hearing, the parties argued whether the district court had jurisdiction in a paternity action to order a change of name. Denk argued that the district court had no jurisdiction, absent the consent of both parties, and Taylor argued that the district court had jurisdiction to order the change of name.
K.S.A. 38-1121 governs the authority of a court to determine the existence or nonexistence of the parent and child relationship. Upon determining that a party is the biological father of a child, the court must make provisions for the child’s support and education.
“(c) Upon adjudging that a party is the parent of a minor child, the court shall make provision for support and education of the child including the necessary medical expenses incident to the birth of the child. . . . The court shall enter such orders regarding custody and visitation as the court considers to be in the best interest of the child.” K.S.A. 38-1121.
Further, K.S.A. 38-113C allows the court to amend the birth certificate to add the name of a parent, correct the name of either parent or of the child, or change the child’s last name, upon request of both parents.
Denk argued that the statute does not provide authority for the district court to change the child’s last name absent the consent of both parents, and she did not give her consent to the change of name. In March 1997, when the district court met with the attorneys to discuss the status of their conciliation efforts, there was some discussion of the question of changing Colton’s last name, but Denk was not present at this meeting and contended at the July 2, 1997, hearing that she did not authorize her attorney to agree to change her son’s name.
Several times during the July 2, 1997, hearing, the parties referred to a recent Kansas Court of Appeals decision, In re Marriage of Miman, 23 Kan. App. 2d 975, 939 P.2d 970 (1997). Based upon our decision in miman, the district court overruled Denk’s objec tions to the court’s jurisdiction to change Colton’s name, and ordered his last name changed to Taylor.
Subsequent to the district court’s decision, our Supreme Court reversed Killman. In re Marriage of Killman, 264 Kan. 33, 955 P.2d 1228 (1998). In Killman, the district court’s authority to order a change of name for a minor child whose custody was subject to the jurisdiction of the court through a divorce action was at issue. We held that the power to change a child’s name in a divorce action was inferred under the authority of K.S.A. 1996 Supp. 60-1610(a), which empowers courts to make orders concerning the support, education, custody, and residency of the minor children of divorcing parents.
Our Supreme Court reversed, stating:
“It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.] The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, die court must give effect to the intention of the legislature as expressed, ratiier than determine what the law should or should not be. [Citation omitted.] Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to die legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. [Citation omitted.]
“... K.S.A. 1996 Supp. 60-1610 specifically provides that a divorce decree may include orders regarding child support, education, child custody, and residency and tiiat, upon the request of a spouse, the court shall order the restoration of that spouse’s maiden or former name. After applying each of the previously discussed rules of statutory construction, we conclude there is no statutory authority in K.S.A. 60-1601 et seq. that authorizes the court to change the name of a minor child of the parties.
“A district court having jurisdiction over a child’s custody in a divorce action does not have jurisdiction or statutory authority to change the name of the child of the marriage. If the legislature had wished to confer authority to change a child’s name in a divorce action, it would have specifically done so as it did in reference to child support, education, custody, and restoration of a spouse’s former name.” 264 Kan. at 42-43.
Following the rational of Killman, we must hold that the Kansas Parentage Act, K.S.A. 38-1110 et seq., does not confer upon the district court the authority to change a child’s name, absent the express consent of both parents. The Act gives courts the authority to determine paternity; make orders concerning the support and education of the child, including necessary medical expenses incident to the birth; and to make orders concerning custody and visitation. K.S.A. 38-1121(c) and (d). Further, the Act gives the courts the authority to change the child’s name with the consent of both parties. K.S.A. 38-1130. If the legislature had intended to grant the courts authority to change a child’s name in a paternity proceeding without the consent of one of the parents, it would have listed that power as one of the authorized orders in the Act. Since it was not included in the Act, we must presume that the legislature did not intend to grant such authority to the courts.
The order of the district court changing Colton’s name to Taylor is reversed.
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Brazil, C.J.:
Plaintiffs challenged the legal incorporation of a watershed district in Washington and Marshall Counties. They filed suit in their individual capacities, but the district court granted the defendants summary judgment and ruled that the plaintiffs had no standing to challenge die incorporation. The court reasoned that K.S.A. 1997 Supp. 24-1207 only allows for such challenges by the Attorney General or the county or district attorneys. The plaintiffs argue that the district court incorrecdy interpreted the statute. We affirm.
The plaintiffs contend that contrary to the district court’s ruling, they do have standing to attack the legal incorporation of the Horseshoe Creek Watershed pursuant to K.S.A. 24-1201 et seq. The defendants counter by arguing that it is a well-setded rule that private individuals do not have standing to challenge the formation of a municipal corporation and that the specific statute governing the formation of watershed districts does not create an exception to that rule. The resolution of this issue requires statutory construction, which is a question of law. Over questions of law, our review is de novo. See In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1, 930 P.2d 1366 (1997).
Watershed districts are governed by the procedures set forth in K.S.A. 24-1201 et seq. K.S.A. 1997 Supp. 24-1207 provides in part as follows:
“No action attacking the legal incorporation of any watershed district organized under this section shall be maintained unless filed within 90 days after the issuance of the certificate of incorporation for such district by the secretary of state, nor shall the alleged illegality of the incorporation of any such watershed district be interposed as a defense to any action brought after such time.”
Although the plaintiffs concede that the general rule in Kansas is that the only parties authorized to challenge the formation of a municipal corporation are the Attorney General or the county or district attorney, they contend that the language in the above statute clearly and unambiguously authorizes private citizens to challenge the incorporation of a watershed district. G.S. 1949,24-1207 (1959 Supp.) was amended in 1961 to add the 90-day limitation. L. 1961, ch. 193, § 7. The plaintiffs argue that the legislature must have intended to extend die right to sue to all interested parties through the addition of this language, which does not specifically restrict the right to challenge the incorporation of a watershed district to the Attorney General or to a county or district attorney. To further support their argument, they point to Attorney General Opinion No. 93-85, where it was stated that “[interested parties may then take legal action attacking the validity of the incorporation within the 90 days.” They also point to die letter from the Attorney General’s office to plaintiffs’ attorney where it was clearly stated that private individuals have the authority to challenge an election concerning the creation of a watershed district.
However, Kansas law is to the contrary. It is settled law in Kansas that a private citizen does not have standing to challenge die le gality of the organization of a municipal corporation. See, e.g., Bishop v. Sewer District No. 1, 184 Kan. 376, 379, 336 P.2d 815 (1959); Elting v. Clouston, 114 Kan. 85, 86, 217 Pac. 295 (1923) (holding private citizens have no standing to question the legitimacy of the proceedings to organize a high school district nor enjoin a public official from canvassing the votes cast at an election held pursuant thereto); A.T. & S. F. Rld. Co. v. Wilson, Treas., 33 Kan. 223, 6 Pac. 281 (1885); Edgington v. City of Overland Park, 15 Kan. App. 2d 721, 725, 815 P.2d 1116 (1991). The legality of a municipal corporation can only be challenged by the State acting through its proper officers. Unified School District v. State Board of Education, 206 Kan. 229, Syl. ¶ 1, 478 P.2d 201 (1970); Smith v. City of Emporia, 168 Kan. 187, Syl. ¶ 1, 211 P.2d 101 (1949). Although taxpayers may challenge illegal taxes, these actions are limited to those that admit the corporate existence of the municipal corporation. DeForest v. Herbert, 204 Kan. 516, 522, 464 P.2d 265 (1970).
Furthermore, there is nothing in the imposition of the 90-day limitation to suggest that the legislature intended to modify the longstanding rule barring private citizens from challenging the formation of a municipal corporation. If the legislature had wanted to extend standing to challenge the legality of a municipal corporation to all interested private parties, it could have said so. Contrary to the opinion of the Attorney General, the 90-day limitation on the time to sue only applies to those with standing to sue. The district court did not err as a matter of law in entering summary judgment in favor of the defendants, nor did it err in denying the motions for relief from judgment and order and the motion for amendment of fact and judgment.
Affirmed.
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KnüDSON, J.:
This sentencing appeal is brought by Richard J. Soler, Jr., who contends the district court erred in its findings of a substantial and compelling reason to impose a durational departure sentence and in its consideration of a victim impact statement.
Soler was originally charged with aggravated assault, criminal discharge of a firearm at an occupied dwelling, and criminal possession of a firearm after a conviction of a felony within 10 years. Under a plea bargain, Soler pled guilty to an amended charge of criminal discharge of a firearm at an unoccupied dwelling, and the remaining charges were dismissed. The parties agreed Soler s presumptive sentence would be within grid block 8-D (17-16-15 months) but with presumed imprisonment because a firearm was used to commit the offense. See K.S.A. 21-4219(a); K.S.A. 21-4704(h). Soler agreed not to request an optional nonprison sentence.
The district court, on its own motion, gave notice of an intent to impose a durational departure, stating as an aggravating circumstance that.“[t]he possibility for injury or loss of life attributed to the offense was significantly greater than typical for this offense because people were present and living in the dwelling.” Over objection by Soler, the district court imposed a durational sentence of 24 months’ imprisonment.
In finding substantial and compelling reasons to impose the durational sentence, the district court stated:
“After considering the matter; the Court finds that there [are] grounds for a durational departure. It’s my belief and my intention here that the departure is not to be based on whether or not Mr. Soler could have been convicted of a greater crime such as the shooting at an occupied vehicle [sic], but it’s based on the fact that his actions in this case resulted in conditions not normally present in this type of offense, that is shooting into a building where there were in fact people and that injuries could have occurred.
“There are cases that indicate the Court cannot use an element that is in the crime itself as an element for departure. For example, if Mr. Soler [pled] guilty to shooting into an occupied dwelling, the Court could not use the factor that the building was occupied as a factor for departure. But I believe here, where he has [pled] guilty — [pled] no contest and was found guilty to a charge of shooting into an unoccupied dwelling, the fact that there were people in that dwelling is not an element of that charge and can be used as a basis for departure. In considering this, the Court has reviewed the impact statement of Barbara Harris, one of the people in the house at the time.
[Objection omitted.]
“. . . That statement says that, ‘My son was sleeping in his bed and the bullet went into the wall above his bed and one went through his closet. Life could have been lost and now we could be homeless.’ Based on the impact statement and based on the comments the Court has just made, L am going to find that durational departure is permissible in this case.”
On appeal, Soler argues that the district court improperly imposed a departure sentence based on an element of the greater offense of discharge of a firearm at an occupied dwelling, the initial charge that was reduced under the plea agreement. He contends that it is not proper under K.S.A. 21-4716 and K.S.A. 21-4719 to use an element of the greater offense as a substantial and compelling reason to impose a departure.
Whether the district court’s reason for imposing a departure sentence is substantial and compelling is a question of law, and our scope of review is unlimited. State v. Keniston, 21 Kan. App. 2d 818, 820, 908 P.2d 656 (1995).
There are several recent cases that have decided somewhat analogous issues and are helpful in resolving this important issue.
In State v. Zuck, 21 Kan. App. 2d 597, 598-99, 904 P.2d 1005, rev. denied 258 Kan. 863 (1995), the defendant pled guilty to attempted rape of his 8-year-old stepdaughter. The evidence indicated that he had been molesting tire child over a lengthy period of time. Prior to sentencing, the State filed a motion for an upward departure that was ultimately granted by the district court.
The district court based its departure in part upon Zuck’s “continuing pattern of conduct.” 21 Kan. App. 2d at 600. On appeal, Zuck cited case law from the state of Washington in support of his argument that the district court had erred. This court noted that “under Washington statutes, uncharged criminal conduct cannot be used to impose an exceptional sentence. [State v. Tunell, 51 Wash. App. 274, 279, 753 P.2d 543 (1988)]. Kansas has no such comparable statute which restricts uncharged criminal conduct from being an upward departure factor.” 21 Kan. App. 2d at 605. The court then concluded:
“Because there is no indication that our legislature considered restricting the use of a defendant’s prior uncharged criminal conduct in establishing the presumptive sentence, the sentencing court here had the discretion to consider such conduct as a departure factor. Importantly, one of the purposes of the guidelines is to ensure public safety. Using a history of unpunished sexual exploitation as a factor to justify a departure is consistent with the purposes of the guidelines.” 21 Kan. App. 2d at 606.
Shortly after Zuck was decided, another panel of this court decided State v. Keniston. Keniston was originally charged with aggravated battery and the brutal rape of an 80-year-old woman. 21 Kan. App. 2d at 819. The aggravated battery charge was based, in part, on the fact that the victim suffered a broken hip when Keniston threw her to the ground; that charge was subsequently dismissed in exchange for Keniston’s plea of guilty to the rape charge. At sentencing, the district court departed from the presumptive sentence, finding that Keniston’s actions manifested excessive brutality to the victim in a manner not normally present in the crime of conviction. 21 Kan. App. 2d at 820-21.
On appeal, Keniston argued that the sentencing court could not base the upward departure on excessive brutality because those actions were encompassed by the aggravated battery charge, which had been dismissed pursuant to the plea agreement. 21 Kan. App. 2d at 822. This court disagreed and held:
“Here, this record shows that the facts supporting the departure sentence, while possibly elements of a separate crime, were not the crimes dismissed by the prosecution. While the physical injury suffered by the victim is certainly an element that could support a charge of aggravated battery, the simple fact is that the court did not depart because defendant committed a battery, but because of the brutality of the rape, which included the considerable physical injury to the victim. There is a difference between using dismissed or uncharged crimes as a reason to depart and using acts connected with the instant offense which could be an element of a different offense. The former might be objectionable for policy reasons to prevent the imposition of a sentence more appropriate for a more serious crime when the State has only been required to prove a lesser offense. However, the latter does not violate any of the purposes of the sentencing guidelines.” (Emphasis added.) 21 Kan. App. 2d at 822.
After Keniston, a panel of this court decided State v. Hawes, 22 Kan. App. 2d 837, 923 P.2d 1064 (1996). Hawes pled guilty to possession of Vt gram of methamphetamine and possession of Vz of a marijuana cigarette. The State requested an upward durational departure based, in part, on statements made by Hawes that he had purchased “eight balls” of methamphetamine in the past from several people in Oklahoma. 22 Kan. App. 2d at 838. Based on these statements, the State argued and the court found that Hawes’ “involvement with methamphetamine was much more than is typically associated with mere users of the drug.” 22 Kan. App. 2d at 841.
On appeal, Hawes argued that the district court erred in considering his uncharged criminal conduct in granting an upward departure. We agreed, stating:
“Departure cannot be based on prior uncharged activity; it violates the presumption of innocence. Even if a person admits to prior criminal activity, that admission is not equivalent to a guilty plea or a conviction. See State v. Bolton, 68 Wash. App. 211, 218-19, 842 P.2d 989 (1992); see also State v. Keniston, 21 Kan. App. 2d 818, 822, 908 P.2d 656 (1995) (sentencing court may use as reason to depart acts connected with the instant offense which could be an element of different offense).
“[H]ere, defendant’s admission to purchasing ‘eight balls’ is uncharged conduct factually unrelated and extenuated from the crime for which he was charged. Defendant’s atypical involvement with the drug is not a substantial and competent reason for departure because it is a finding unsupported by substantial competent evidence connected to the current crime of conviction.” (Emphasis added.) 22 Kan. App. 2d at 841-42.
K.S.A. 21-4716(b)(2) contains a nonexclusive list of aggravating factors to be used in determining whether substantial and compelling reasons exist for a departure sentence. Factors not specifically listed in the statute may be considered by the sentencing court when considering whether to grant a departure. State v. Richardson, 20 Kan. App. 2d 932, 941, 901 P.2d 1 (1995). Nevertheless, a plain reading of the statute compels the conclusion that an aggravating circumstance must be based upon conduct of an offender that is contemporaneous with and rationally related to the underlying crime of conviction.
The holding in Zuck is entirely consistent with the above statutoiy interpretation. In Zuck, the “continuing pattern of conduct,” albeit uncharged criminal conduct, was contemporaneous with and rationally related to the defendant’s crime of conviction. 21 Kan. App. 2d at 600.
In Keniston, the conduct supporting an aggravating circumstance clearly arose out of the factual circumstances underlying the defendant’s crime of conviction. The issue was whether the district court relied upon the dismissed charge of aggravated battery as a substantial and compelling reason to impose a departure sentence. The Keniston court decided that was not what the trial court had done; instead, it had considered “acts connected with the instant offense which could be an element of a different offense.” 21 Kan. App. 2d at 822. In dicta, the court suggests use of a dismissed or uncharged crime may be problematical.
While the above decisions are helpful, the holdings do not directly answer the question now before us. Soler entered a dispositive plea to criminal discharge of a firearm at a dwelling, contrary to K.S.A. 21-4219. If the dwelling is unoccupied, the crime is a severity level 8 person felony; if occupied, a severity level 7 person felony; and if occupied and bodily harm occurs, a severity level 5 person felony. The question is: May the district court base a departure sentence on facts that establish a higher offense subclassification for the crime to which Soler entered a dispositive plea pursuant to plea negotiations?
The most persuasive legislative history of K.S.A. 21-4716 is found in the Recommendations of the Kansas Sentencing Commission submitted to the legislature on January 15, 1991. In its report the commission gave this telling explanation of proposed aggravating factors that would support a departure sentence:
“In the guidelines system, the seriousness of criminal conduct is determined by the crime of conviction. Consequently, a departure sentence is not appropriate for elements of alleged offender behavior not within the definition of the offense of conviction. If the conviction is pursuant to a plea agreement as to the crime of conviction, a departure cannot be based on facts that would, if proven, establish a higher offense subclassification for the crime or result in a more serious crime of conviction.
“For example, if an offender is convicted of robbery, the sentence should not be aggravated beyond the upper limit of the presumptive sentence range because the offender was actually armed with a dangerous weapon at the time of the robbery. This is not an aspect of the crime of conviction since it is clearly an element of aggravated robbery and not robbery. Since this aspect of the crime was not captured in the conviction, it should not later be used to impose an aggravated sentence for the conviction of the lesser offense.” Chapter 9, p. 83.
We find the commission’s reasoning to be persuasive as to the narrow issue before us. We hold that “[i]f the conviction is pursuant to a plea agreement as to the crime of conviction, a departure cannot be based on facts that would, if proven, establish a higher offense subclassification for the crime.” Chapter 9, p. 83.
In the case before us, Soler was charged with the discharge of a firearm at an occupied dwelling. Pursuant to a plea bargain, he was only convicted of discharge of a firearm at an unoccupied dwelling, a lower offense subclassification. See K.S.A. 21-4219. Because the district judge based the upward departure on an element of the greater offense that had been reduced under the plea agreement, we conclude Soler’s sentence must be vacated and returned to the district court for resentencing.
Our decision is a narrow refinement of the holding in Keniston. A district court is free to consider the real facts in determining whether to depart even if those facts would also support elements of an uncharged or dismissed offense; however, the district court cannot use real facts that establish elements of a greater degree of the same crime that was the subject of a plea agreement. A contrary result would be tantamount to indirectly ratcheting up the crime of conviction — a result clearly not intended by the legislature and inconsistent with public policy.
Our decision renders moot Soler’s contention that the district court should not have given consideration to the victim impact statement at the departure hearing.
Sentence vacated and case remanded for resentencing.
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GREEN, J.:
This litigation involves a declaratory judgment action brought by State Farm Automobile Insurance Company and State Farm Fire Insurance Company (State Farm) for a determination of whether they owed any additional bodily injury liability coverage to Carol Joanne Stevenson (Carol), a car accident victim, and to her husband, John Stevenson. Both parties moved for summary judgment. The trial court denied State Farm’s summary judgment motion but granted, in part, the Stevensons’ summary judgment motion, holding that additional liability coverage existed for Carol’s accident in the amount of $100,000. On appeal, State Farm contends that the trial court erred in stacking the liability coverages. We agree. The Stevensons cross-appeal and contend that State Farm has liability coverage up to $200,000. We disagree. Accordingly, we reverse the judgment of the trial court.
The underlying facts of this case are not disputed. On July 5, 1994, Louie F. Lawyer was involved in an accident with Carol. The accident occurred in Lee’s Summit, Missouri. Lawyer was driving a dump truck owned by Valorie Lane. Lane was involved in a hauling business with brothers T. J. and Edward Crumby. Carol sustained severe physical injuries in the accident. As a result, Carol and her husband sued Lane, d/b/a Lane Hauling, Lawyer, and T. J. Crumby and Edward Crumby, d/b/a Crumby Auto Sales & Hauling Services, under several theories, in Jackson County, Missouri. The parties agreed that when the accident occurred, Lawyer was driving Lane’s dump truck in the course and scope of his employment with Lane or the Crumbys, or both, and in furtherance of their hauling business.
Lane’s dump truck was insured by State Farm. State Farm also insured Lane’s two other dump trucks, with bodily injury liability limits of $100,000 per person; two dump trucks owned by T.J. Crumby, with bodily injury liability limits of $100,000 per person; Lane and Edward Crumby’s Chevrolet Blazer, with a bodily injury liability limit of $25,000; and Edward Crumby’s GMC pickup truck, with a bodily injury liability limit of $25,000. All of the policies were Kansas policies.
The Stevensons settled with the defendants and State Farm in the Missouri action. As part of the settlement, State Farm paid into the court $100,000, the bodily injury limit of liability on Lane’s policy insuring the dump truck involved in the accident. The Stevensons released Lane, Lawyer, and the Crumbys from any personal liability but reserved their right to pursue all applicable insurance proceeds and interest “to the extent of any unpaid, applicable liability insurance coverage up to the amount of $200,000.00, plus interest at the statutory rate.”
Next, State Farm moved for declaratory judgment, claiming that the $100,000 already paid to the Stevensons was the full limit of its liability under any of the six additional policies issued to Lane and the Crumbys. Both State Farm and the Stevensons moved for summary judgment. In a memorandum decision, the trial court denied State Farm’s motion and granted the Stevensons’ motion in part. The trial court held that the Stevensons could stack liability coverage under one of the Crumbys’ dump truck policies on top of Lane’s primary liability coverage and that the Stevensons could, therefore, recover an additional $100,000. In a supplemental memorandum, the trial court clarified its ruling and reiterated its earlier decision that State Farm’s exposure to the Stevensons was limited to an additional $100,000 under one of the Crumbys’ policies.
Both State' Farm’s and the Stevensons’ arguments regarding any additional liability coverage, in addition to Lane’s primary liability coverage for $100,000, were made under the “non-owned car” liability coverage included in each of the six additional policies. Nevertheless, in determining that the non-owned car coverage exclusion was inapplicable, the trial court stated:
"Stacking the employer’s (Crumby’s) policy on top of Lane’s primary coverage is the issue here; not whether Crumby’s policy should (additionally) cover Lane’s 'non-owned’ vehicle because it was or was not used in 'some business’.
“Even if it did, this Court finds that Lane’s borrowed truck was not being used in the car business or any ‘other business, except the Crumby’s venture, which was the named insured as declared in the policy.” (Emphasis added.)
On appeal, both parties disagree with the trial court’s stacking analysis and focus on the non-owned car business exclusion.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995). Here, the facts are essentially undisputed. Whether the trial court erred in granting the Stevensons summary judgment depends upon the construction given the language of the policy.
Our Supreme Court has frequently observed that “ ‘[a]s a general rule, the construction and effect of a contract of insurance is a matter of law to be determined by the court. If the facts are admitted, then it is for the court to decide whether they come within the terms of the policy.’ Farm Bureau Mut. Ins. Co. v. Horinek, 233 Kan. 175, Syl. ¶ 1, 660 P.2d 1374 (1983).” Harris v. Richards, 254 Kan. 549, 552, 867 P.2d 325 (1994). Moreover, this court recently reviewed the rules of construction for insurance contracts in Oetinger v. Polson, 20 Kan. App. 2d 255, 257-58, 885 P.2d 1274 (1994), rev. denied 256 Kan. 996 (1995) (quoting U.S.D. No. 259 v. Sloan, 19 Kan. App. 2d 445, 452-53, 871 P.2d 861 [1994]):
" ‘ “The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court.” [Citation omitted.] “Whether an instrument is ambiguous is a matter of law to be decided by the court.” [Citation omitted.] This court’s review of questions of law is unlimited. [Citation omitted.]’ ”
Turning our attention to the trial court’s decision allowing the stacking of the Crumbys’ policy on top of Lane’s primary coverage policy, we determine that the trial court erred in stacking those two policies. Both policies contained the following anti-stacking language: “If two or more vehicle liability policies issued by us to you apply to the same accident, the total limits of liability under all such policies shall not exceed that of the policy with the highest limit of liability.”
As stated earlier, Lane owned three dump trucks, each of which was separately insured by State Farm with per person bodily injury liability limits of $100,000. As to claims for coverage under these Lane policies, the Stevensons were limited to the $100,000 tendered into court in the underlying personal injury action because that amount represented the “highest limit of liability” of any single Lane policy. Because the Stevensons in their motion for summary judgment did not pursue a claim for additional insurance coverage under policies issued to Lane, there was no reason for the trial court to construe or apply the anti-stacking clause. On the other hand, had the Stevensons advanced a claim under the Lane policies, the anti-stacking clause would have been relevant.
State Farm defines a non-owned car as “a car not owned by or registered or leased in the name of . . . you, your spouse; . . . any relative . . . any other person residing in the same household as you, your spouse or any relative; or ... an employer of you, your spouse or any relative.” Because Lane owned die 1974 dump truck involved in the collision with Carol, the truck was not a non-owned car under Lane’s other liability insurance policies but was a non-owned car under policies issued to the Crumbys.
Accordingly, if any additional liability coverage existed under the Crumbys’ policies for use of the Lane dump truck on the date of the accident, the coverage would have had to come from the non-owned car part of the policies. As a result, the trial court erred in determining the liability coverage under the Crumbys’ policies was a stacking question. Nevertheless, “[a] trial court decision which reaches the right result will be upheld, even though the trial court may have relied upon the wrong ground or assigned erroneous reasons for its decision.” Bank of Kansas v. Davison, 253 Kan. 780, 792, 861 P.2d 806 (1993). See Kelly v. Primeline Advisory, Inc., 256 Kan. 978, 988, 889 P.2d 130 (1995); In re Estate of Murdock, 20 Kan. App. 2d 170, 175, 884 P.2d 749 (1994).
Both State Farm and the Stevensons agree that the Lane dump truck is a non-owned car with regard to the Crumbys’ policies because Lawyer was not the named insured and was not a spouse or relative of the Crumbys. However, State Farm and the Stevensons disagree as to whether coverage is excluded under the following clause:
“THERE IS NO COVERAGE FOR NON-OWNED CARS:
“2. WHILE:
a. BEING REPAIRED, SERVICED OR USED BY ANY PERSON WHILE THAT PERSON IS WORKING IN ANY CAR BUSINESS; OR
b. USED IN ANY OTHER BUSINESS OR OCCUPATION.”
State Farm reasons that under subsection 2.a., the policy excludes a non-owned car used in any car business, and that under 2.b., the policy excludes a non-owned car used in any other business including the business of the insured. On the other hand, the Stevensons argue that the trial court’s interpretation that 2.b. excludes non-owned vehicles used in any business other than the primary business of the insured is a reasonable interpretation. The Stevensons further argue that if the non-owned car exclusion is susceptible to more than one interpretation, it is ambiguous and should, therefore, be construed against State Farm.
In determining whether an insurance policy is ambiguous, our court has stated that a court is required to interpret an insurance policy in the same manner that “ ‘ “a reasonable person in the position of the insured would understand it to mean.’ ” [Citation omitted.]” Crescent Oil Co. v. Federated Mut. Ins. Co., 20 Kan. App. 2d 428, 433, 888 P.2d 869 (1995). An insurance policy is not ambiguous unless there is a “genuine uncertainty as to which of two or more possible meanings is proper.” 20 Kan. App. 2d at 433. The policy must be read as a whole. Lightner v. Centennial Life Ins. Co., 242 Kan. 29, 35, 744, P.2d 840 (1987).
In addition, this court has consistently stated that we may not rewrite the parties’ contract, “When an insurance policy is not ambiguous, the court may not make another contract for the parties.” Saucedo v. Winger, 22 Kan. App. 2d 259, 260, 915 P.2d 129 (1996). See also Metropolitan Life Ins. Co. v. Strad, 255 Kan. 657, Syl. ¶ 8, 876 P.2d 1362 (1994) (‘Where the language of the contract is clear and can be carried out as written, there is no room for construction or modification of the terms.”).
State Farm argues that the language of the non-owned car exclusion is clear and unambiguous when both parts of the exclusion are read together. State Farm reasons that the reference in 2.b. to “any other” business clearly refers to any business other than the car business when read in conjunction with 2.a.
Conversely, the Stevensons argue that as the insurer and drafter of the insurance contract, State Farm has the burden of demonstrating that coverage is excluded. The Stevensons reason that State Farm’s failure to define “other business” in its manuals or instructional materials leaves the meaning of the term open. Moreover, the Stevensons maintain that the exclusion is ambiguous and that courts are divided in interpreting “other business” as used in State Farm’s non-owned car exclusion. For support, the Stevensons cite Rossman v. State Farm Ins. Cos., 184 Mich. App. 618, 459 N.W.2d 72 (1990), lv. to appeal denied 437 Mich. 1025 (1991).
In Rossman, a case dealing with identical policy language, the Michigan Court of Appeals found ambiguity in the words “other business or occupation” and construed that ambiguity against the insurance company to find that the policy extended liability coverage to a volunteer firefighter driving a fire truck. The Rossman court reasoned that under various definitions “other business or occupation” might or might not include volunteer activities. However, Rossman is of little value to the Stevensons as it is undisputed that Lawyer was driving the dump truck in the furtherance of Lane’s and the Crumbys’ hauling businesses. Moreover, in a later decision, Wilson v. Gilde, 204 Mich. App. 251, 514 N.W.2d 520 (1994), the Michigan Court of Appeals acknowledged but declined to follow Rossman and found State Farm’s non-owned car business exclusion clear and unambiguous.
In Wilson, the insured, Henry Gilde, volunteered to help with his brother Leonard’s apple orchard business by driving a truckload of apples to the cider mill. While driving Leonard’s truck, Henry was involved in an accident. The parties agreed that Henry was an insured under his State Farm policy and that Leonard’s truck was a non-owned car. However, the parties disagreed as to whether coverage was excluded under the non-owned car business exclusion. Plaintiff argued that under Rossman, Henry’s volunteer activities should be covered. However, in disagreeing, the Wilson court explained:
“The policy states that there is no coverage for a nonowned car while used in any other business or occupation. At first glance, there appears to be ambiguity in the use of the word ‘other’: what is the ‘primary’ business that is being distinguished from all other businesses and occupations? By following the punctuation of the policy, this ambiguity is easily eliminated. The primary business being distinguished from all others is the ‘car business’ that is mentioned in the clause immediately preceding.
“The policy distinguishes between the car business and all other businesses and occupations for reasons not relevant to this appeal. Because we are not dealing with a private passenger car or the car business, the applicable policy language in this case is, ‘There is no coverage for nonowned cars while used in any business or occupation.’
“This policy language does not focus inquiry on how Henry or Leonard earn a living, but on how the nonowned car is being used. At the time of the accident, Leonard’s truck was being used to take apples to a cider mill. Plaintiff does not dispute that the apples were going to be sold at the cider mill, not processed for Leonard’s personal consumption.
“Words are by nature flexible things, with meanings that can vary significantly; but however amorphous the meaning of words may be, there is no fair reading of these policies that would lead someone to conclude that either policy provides coverage in this case. Selling apples by the truckload is a business. Because the policies unambiguously exclude coverage for nonowned cars used for business, the trial court properly granted State Farm summary disposition.” 204 Mich. App. at 253-54.
State Farm cites Wilson; State Farm Mut. Auto. Ins. Co. v. Lewis, 514 So. 2d 863, 865 (Ada. 1987), and several other cases which hold that State Farm’s non-owned car exclusion clearly and unambiguously excludes coverage for business uses including the business of the insured.
Although there are no Kansas cases construing State Farm’s non-owned car business exclusion, we are persuaded by the earlier cases cited by State Farm that its non-owned car exclusion unambiguously excluded coverage for business uses, including the business or occupation of the insured. Moreover, as to the Stevenson’s cross-appeal, we determine that State Farm had exhausted all of its liability coverage owed to the Stevensons under all insurance policies issued to Lane, T. J. Crumby, and Edward Crumby when it paid into court the $100,000, which represented the bodily injury limit of liability on Lane’s policy insuring the dump truck involved in the collision.
As a result, we reverse the judgment of the trial court in favor of the Stevensons and remand this case with directions to enter judgment in favor of State Farm.
Reversed and remanded with directions.
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Gernon, J.:
Henry G. Kirkland filed a petition pursuant to K.S.A. 60-1507, seeking to withdraw his plea of no contest to one count of aggravated batteiy. The plea was part of a plea bargain in which another count of aggravated battery and a charge of child abuse were dismissed.
Pending a hearing on this appeal, Kirkland died. The issue before us is whether his death makes an appeal from a K.S.A. 60-1507 petition moot. If the appeal is not moot, we must address the issues raised.
An action pursuant to K.S.A. 60-1507 relates to a prisoner in custody who claims the right to be released based upon the sentence being unlawful. A prisoner must show a constitutional basis or a lack of jurisdiction by the sentencing court, or that the sentence is in excess of the maximum allowed or is otherwise subject to collateral attack. Although the statute is part of the Kansas'Code of Civil Procedure, it pertains to those involved in criminal cases by its subject matter and title.
Kansas courts have held that a direct appeal from a criminal conviction is not rendered moot due to the death of the defendant. State v. Burnison, 247 Kan. 19, 32, 795 P.2d 32 (1990); State v. Jones, 220 Kan. 136, 137, 551 P.2d 801 (1976).
The United States Supreme Court, in McMann v. Ross, 396 U.S. 118, 24 L. Ed. 2d 303, 90 S. Ct. 395 (1969), held that the death of a prisoner rendered a habeas appeal moot.
In McMillin v. Bowersox, 102 F.3d 987 (8th Cir. 1996), the court stated: “Since his imprisonment ended upon his death, and there can be no future collateral consequences flowing from his imprisonment, his collateral attack is moot.”
Accordingly, given the record before us, and with no showing that there are any collateral consequences flowing from a finding of mootness, the appeal is dismissed as moot. The judgment of the district court is vacated, and the case is remanded with instructions to dismiss the petition as moot.
Appeal dismissed, judgment vacated, and case remanded with instructions.
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KnüDSON, J.:
Earline Pate appeals from the district court’s grant of summaiy judgment to Riverbend Mobile Home Village, Inc., (Riverbend) in a lawsuit brought by Pate to recover damages for personal injury. The issue before the district court and now on appeal concerns the duty a landlord owes a tenant for an unsafe condition on the leased premises.
On December 28, 1993, Earline Pate and her husband, Robert Pate, leased a mobile home and the lot on which the home was located from Riverbend. The written lease required the Pates to maintain the mobile home and yard.
On June 28, 1994, while playing with her children in the front yard, Earline tripped over a round, iron pole that protruded an inch or two above the ground. This pole was the base of a clothesline that had been removed by Riverbend before the Pates took possession of the property. Earline contends Riverbend is liable for her injuries and damages because it had a duty to disclose this hidden, unsafe condition upon the premises.
Riverbend’s motion for summary judgment admits the pole was on the premises when the Pates took possession but contends that the pole was not a defect, and, in any event, it was discoverable upon reasonable inspection by the Pates. Attached to Riverbend’s motion was a copy of the lease; a copy of an inventory and conditions report completed by Robert Pate, which indicated that the condition of the yard was “ok”; and pictures of the yard taken in October after the pole had been removed.
In opposing Riverbend’s motion, Earline denied that she or her husband was aware of the pole’s existence before her injuxy. She argued before the district court that whether the pipe was an undisclosed, dangerous condition and unknown by the lessees presents questions of fact that cannot be resolved by summary judgment.
The district court reasoned that the pole did not present an unsafe condition but even if it did, “[t]he testimony of [Earline] and the pictures entered into evidence clearly establish that the round iron pole was located in the Plaintiff’s yard and was clearly visible to ordinary observation.” The court, therefore, concluded that Riverbend breached no duty owed to Earline and granted summary judgment.
The applicable standard to consider a motion for summary judgment by the district court or on appeal has been stated to be as follows:
“The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact: In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).
Kansas maintains a general rule of nonliability upon the landlord to either the tenant or to others entering upon the land for defective conditions existing at the time of the lease. Borders v. Roseberry, 216 Kan. 486, 488, 532 P.2d 1366 (1975). This general rule, however, has six recognized exceptions:
1. Undisclosed dangerous conditions known to the lessor and unknown to the lessee;
2. Conditions dangerous to persons outside of the premises;
3. Premises leased for admission of the public;
4. Parts of land retained in the lessor’s control which the lessee is entitled to use;
5. Where the lessor contracts to repair; and
6. Negligence by the lessor in making repairs. 216 Kan. at 488-93.
Earline argues that Riverbend’s actions fall under exceptions numbers one and six. The Borders court had this to say about these exceptions:
“1. Undisclosed dangerous conditions known to lessor and unknown to the lessee.
“This exception is stated in Restatement, Second, Torts § 358 as follows:
Ԥ 358. Undisclosed Dangerous Conditions Known to Lessor
‘(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if
‘(a) the lessee does not know or have reason to know of the. condition or the risk involved, and
‘(b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.
‘(2) If the [lessor] actively conceals the condition, the liability stated [in] Subsection (1) continues until the lessee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions.’
In Kansas we have recognized and applied this exception to impose liability upon the landlord in the following cases: Moore v. Parker, 63 Kan. 52, 64 Pac. 975; Branstetter v. Robbins, 178 Kan. 8, 283 P.2d 455; Stertz v. Briscoe, 184 Kan. 163, 334 P.2d 357; Tillotson v. Abbott, 205 Kan. 706, 472 P.2d 240; Bodnar v. Jackson, 205 Kan. 469, 470 P.2d 726. It should be pointed out that this exception applies only to latent conditions and not to conditions which are patent or reasonably discernible to the tenant. (Branstetter v. Robbins, supra.)” 216 Kan. at 488-89.
“6. Negligence by lessor in making repairs.
“When the lessor does in fact attempt to make repairs, whether he is bound by a covenant to do so or not, and fails to exercise reasonable care, he is held liable for injuries to the tenant or others on the premises in his right, if the tenant neither knows nor should know that the repairs have been negligently made. This exception is stated in Restatement, Second, Torts § 362:
Ԥ 362. Negligent Repairs by Lessor
‘A lessor of land who, by purporting to make repairs on the land while it is in the possession of his lessee, or by the negligent manner in which he makes such repairs has, as the lessee neither knows nor should know, made the land more dangerous for use or given it a deceptive appearance of safety, is subject to liability for physical harm caused by the condition to the lessee or to others upon the land with the consent of the lessee or sublessee.’ ” 216 Kan. at 492-93.
In granting summary judgment to Riverbend, the district court reasoned:
“The testimony of the Plaintiff and the pictures entered into evidence clearly establish that the round iron pole was located in the Plaintiff’s yard and was clearly visible to ordinary observation. In Branstetter, our Supreme Court determined that a landlord is under no duty to disclose to the tenant obvious defects in the premises which are apparent to observation, especially where there is an equal opportunity for observation on the part of each party; and no liability is imposed on the landlord for his failure to make known such defects. It has been stated that the landlord owes the tenant no duty except that of not entrapping him by concealing facts which ordinary inspection would not reveal. [Citation omitted.]
“Given the facts that have been stipulated to in this case and adopted by the Court, the Court finds that there is no duty owed by Riverbend to Pate because of the alleged ‘defect’ (round metal pole) complained of by Plaintiff because this alleged defective condition complained óf by Plaintiff is clearly as discernible upon reasonable investigation to Plaintiff as it was to Riverbend. [Citations omitted.]”
We conclude the district court did not err in granting summary judgment to Riverbend.
First, it is apparent the district court gave consideration to photographs of the yard that were submitted into evidence when determining that (a) the pole was not hidden, and (b) Robert or Earline knew or should of known of its existence before the time of the accident. Earline has failed to include those photographs in the record on appeal. It is an appellant’s duty to designate a record on appeal sufficient to establish claimed error; without an adequate record, the appellant’s claim of error fails. See Durham v. Cessna Aircraft Co., 24 Kan. App. 2d 334, 335, 945 P.2d 8 (1997); Supreme Court Rule 3.02 (1997 Kan. Ct. R. Annot. 20). Without the photographs, we are not in a position to conclude that there was material error in the district court’s grant of summary judgment.
Second, the uncontroverted facts support the district court’s decision: The Pates had been in possession of the leased premises for 6 months before the accident; Mr. Pate signed an inventory and conditions report that the condition of the yard was “ok”; the pole protruding one to two inches above the ground was located in the yard; Pates had a duty to maintain the premises, including the yard; and “the testimony of [Earline] and the pictures entered into evidence clearly established] that the round iron pole was . . . visible to ordinary observation.” These factual circumstances support the district court’s determination that Robert or Earline knew or should have known of the pole’s existence and location prior to Earline’s accident.
Affirmed.
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Marquardt, J.:
Petex, Inc., (Petex) appeals the district court’s granting of summary judgment to Reynolds-Rexwinkle Oil, Inc., (Reynolds-Rexwinkle) holding that the oil and gas lease between Petex and Herman and Loretta Schippers entered on August 30, 1993, was an extension of the lease assignment between Petex and Reynolds-Rexwinkle entered on May 14, 1993. Reynolds-Rexwinkle cross-appeals the denial of its motion for attorneys fees.
The district court found that on February 5,1992, the Schippers entered into an oil and gas lease (original lease) with Hess, Inc., (Hess). The original lease was for a period of 1 year and contained an option to extend as long as oil and gas remained in production on the leased property. Consideration for the lease was $1,000. The Schippers retained a Vs royalty interest under the original lease. A rider provided that the Schippers also retained an additional overriding royalty interest of V32 of the remaining Vs interest in production from the lease property.
On February 10, 1992, Hess assigned its interest in the original lease to Reynolds-RexwinUe. Reynolds-Rexwinkle is a Kansas corporation, with its principal place of business in Sedgwick County, Kansas. Prior to the expiration of the original lease term, ReynoldsRexwinkle exercised its option to extend the lease for 1 year to February 5, 1994. Reynolds-Rexwinkle paid the Schippers $1,000 in consideration for the extension.
On May 14, 1993, Reynolds-Rexwinkle assigned its interest in the original lease to Petex, a Missouri corporation with its principal place of business located in Springfield, Missouri. The assignment states:
“The Assignor herein hereby expressly excepts, reserves, and retains title to an undivided 1.5% of %ths of all oil, gas, casinghead gas produced, saved, and marketed from the above described land under the provisions of the aforesaid lease, or any extension or renewal thereof, as an overriding royalty, free and clear of any cost and expense of the development and operation thereof, excepting taxes applicable to said interest and the production therefrom.” (Emphasis added.)
Petex did not drill, rework, or explore the leased property under the original lease.
On August 30, 1993, Petex entered into a new lease with the Schippers (second lease) commencing on February 6, 1994, 1 day after the original lease expired.
The terms of both the original lease and the second lease are nearly identical. Both leases cover the same property and the same primary parties. The Schippers received a Vs royalty interest and V32 of Vs overriding royalty interest in all oil and gas produced under both leases. The primary term of the second lease was 2 years. The primary term of the original lease was 1 year with an option to extend for 1 additional year. Consideration for the second lease was $10 with an additional delay rental of $800 to secure the second year of the primary term. Consideration for the original lease was $10 and an additional $1,000 to exercise the option to extend. The main difference is that the second lease contains no reference to Reynolds-Rexwinkle’s overriding royalty interest.
On November 18,1994, within the first year of the second lease, Petex drilled an oil well on the property. On December 28, 1994, Reynolds-Rexwinkle filed an affidavit in Sedgwick County, Kansas, claiming a 1.5 percent of % overriding royalty interest under the terms of the May 14, 1993, assignment. On or about January 6, 1995, Petex began producing paying quantities of oil from the well.
On March 17, 1995, Reynolds-Rexwinkle sent a demand letter to Petex stating that its overriding royalty interest must be honored. The letter requested a response within 10 days or suit would be filed. Petex did not respond to the demand letter. On March 27, 1995, Petex filed a petition for a declaratory judgment and reformation in the Circuit Court of Greene County, Missouri, requesting a determination that Reynolds-Rexwinkle had no interest in the second lease. Petex claimed the Greene County Circuit Court had jurisdiction over Reynolds-Rexwinkle because the latter’s vice-president made an unsolicited phone call to the Petex offices in Missouri on May 14,1994, to discuss the original lease assignment. There is no evidence in the record that Petex proceeded with its Missouri lawsuit beyond filing the petition.
On May 16, 1995, Reynolds-Rexwinkle filed suit in the District Court of Sedgwick County, Kansas, seeking to enforce its overriding royalty interest in the original lease assignment. Both parties filed motions for summary judgment in the Kansas case. ReynoldsRexwinkle claimed the second lease should be regarded as an extension of the original lease and it requested attorney fees. The district court granted partial summary judgment to Reynolds-Rex-winkle, holding that the second lease is an extension of the original lease and that “Reynolds is entitled to recover from Petex an amount equal to all proceeds attributable to the overriding royalty interest as provided for in the Assignment, together with interest as hereinafter provided until paid.” The district court found that no confidential relationship or fiduciary duty existed between the parties. The district court also granted partial summary judgment to Petex denying Reynolds-Rexwinkle’s attorney fees.
Petex filed a timely notice of appeal. Reynolds-Rexwinkle filed a timely notice of cross-appeal.
Petex argues that the district court should have declined jurisdiction under the doctrine of comity because the Circuit Court of Greene County, Missouri, had already asserted jurisdiction over the same parties and the same dispute.
Whether a district court should have declined jurisdiction over a case under the doctrine of comity is reviewed under the abuse of discretion standard. Anderson v. Anderson, 214 Kan. 387, 392, 520 P.2d 1239 (1974); Boyce v. Boyce, 13 Kan. App. 2d 585, 590, 776 P.2d 1204, rev. denied 245 Kan. 782 (1989). Discretion is abused when no reasonable person would agree with the decision of the district court. Simon v. Simon, 260 Kan. 731, 735, 924 P.2d 1255 (1996).
In Boyce, 13 Kan. App. 2d at 589-90, this court declined jurisdiction, stating:
“It is well established that, when a court of competent jurisdiction acquires jurisdiction of the subject matter, its authority continues until the matter is finally disposed of and no court of coordinate jurisdiction should interfere with its action. Schaefer v. Milner, 156 Kan. 768, 775, 137 P.2d 156 (1943). Courts should exercise comity between themselves in order to avoid expense, harassment, and inconvenience to the litigants. Perrenoud, 206 Kan. at 573. Under principles of comity, courts of one state give effect to the laws and judicial decisions of another, not as a matter of obligation, but out of deference and respect. Head, 242 Kan. 442, Syl. ¶ 2.”
In Boyce, the plaintiffs filed suit in Kansas for child support immediately after they lost an identical suit in Nebraska. 13 Kan. App. 2d at 586. After noting the rules of comiiy, the court ruled that the district court did not abuse its discretion in declining jurisdiction because disappointed plaintiffs should not be allowed to engage in forum shopping after they have lost an identical suit in another state. 13 Kan. App. 2d at 591.
In Anderson, 214 Kan. at 392, our Supreme Court found the Butler County District Court did not abuse its discretion when it accepted jurisdiction over a case while related proceedings were pending before the Sedgwick County District Court. In Anderson, the father and mother of a minor child were divorced in Minnesota and child custody was given to the father. The mother was given the right to take the child on a 4-week summer vacation to Wichita, Kansas. While in Kansas, the mother exceeded the 4-week stay and filed suit in Sedgwick County seeking custody of the child. She was granted temporary custody pending further proceedings. The mother and child then moved to Butler County, Kansas. The father filed a K.S.A. 60-1501 action in Butler County seeking custody of the child. The Butler County District Court found that full faith and credit should be given to the Minnesota divorce and child custody decree and granted custody to the father. Our Supreme Court stated:
“Under the principle of comity the Butler district court might . . . have deferred taking action on plaintiff’s application for the writ until after the District Court of Sedgwick County had conducted a final hearing, but it was not required to give priority and we discern no abuse of discretion when it proceeded to hear its own lawsuit expeditiously. While we look with no great favor on multiple litigation or legal maneuvering for position on the part of litigants [citation omitted] we are aware of no legal impediment to Judge Benson’s entertaining the habeas corpus action. The Butler district court had jurisdiction over the parties, over the subject matter and over the child, whether or not a suit for change of custody was pending elsewhere. The two' actions were separate and distinct lawsuits and the question of priority of time in filing was immaterial.” 214 Kan. at 392.
While forum shopping is not favored by Kansas courts, district courts are afforded significant discretion in determining whether the facts constitute such a practice. The most important issue is whether the court had jurisdiction over the subject matter and the parties, not whether one party filed its suit before the other.
Here, there is no evidence in the record that Reynolds-Rexwinkle was attempting to escape an adverse judgment from another jurisdiction. There is also no evidence that the Missouri case, filed on March 27, 1995, had addressed any substantive issues relating to the original lease assignment when Reynolds-Rexwinkle filed suit in Kansas on May 16,1996. These facts distinguish the present case from the fact situation in Boyce, 13 Kan. App. 2d at 585.
Furthermore, this case involves a Kansas corporation, a Missouri corporation doing business in Kansas, Kansas landowners, Kansas lease property, and a Kansas oil and gas distribution company. The parties do not dispute that the Sedgwick County District Court had both subject matter and personal jurisdiction in this case in light of these facts. The only Missouri connection to this case was the location of Petex5s corporate headquarters and two phone calls made by a Reynolds-Rexwinkle vice-president on May 13,1994, to discuss the original lease assignment.
In light of die principles of comity, the district court did not abuse its discretion by accepting jurisdiction over this case.
Petex argues summary judgment was improper in its finding that the second lease was an extension or renewal of the original lease.
The standard of review in a case involving the district court’s grant of summary judgment is well established:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131, 955 P.2d 1189 (1998).
Petex characterizes the second lease as neutral and unrelated to the original lease assignment. Petex claims the original lease assignment expired on February 5, 1994, and Reynolds-RexwinUe’s overriding royalty interest expired by its own terms on the same date.
Reynolds-Rexwinkle claims the second lease is a top lease which unfairly “washes out” its overriding royalty interest. Specifically, Reynolds-Rexwinkle claims Petex owes it a duty of fair dealing with regard to the overriding royalty interest in the assignment. It claims the second lease breached this duty. As such, it argues that by operation of law the second lease should be deemed an extension or renewal of the assignment. Reynolds-Rexwinkle argues that the judgment below should be affirmed.
An “overriding royalty interest” is
“a royally carved out of the working interest created by an oil and gas lease. Most frequently it is created subsequent to a lease by outright grant or by a reservation in the assignment of the operating rights. It is an interest in oil and gas produced at the surface, free of the expense of production and its outstanding characteristic is that its duration is limited by the duration of the lease under which it is created.” Campbell v. Nako Corporation, 195 Kan. 66, 70, 402 P.2d 771 (1965).
A “top lease” is “[a] lease granted by the landowner during the existence of a recorded mineral lease which is to become effective if and when the existing lease expires or is terminated.” 8 Williams and Meyers, Oil and Gas Law, Manual of Terms 1115 (1997).
“In the oil and gas vernacular to toplease is to secure a lease on land covered by an existing lease to the end that the toplease will be effective after the expiration of the existing lease and the interest of one or more lessees thereby ehminated. Topleasing has the same invidious characteristics as claim jumping.” (Emphasis added.) Frankfort Oil Company v. Snakard, 279 F.2d 436, 445, n.23 (10th Cir. 1960), cert. denied, 364 U.S. 920 (1960).
A “washout” is the “[elimination of an overriding royalty or other share of the working interest by the surrender of a lease by a sublessee or assignee and subsequent reacquisition of a lease on the same land free of such interest.” 8 Williams and Meyers, Oil and Gas Law, Manual of Terms 1162 (1997).
Two Kansas cases dealing with the issue of whether the second lease is a renewal or extension of the original lease assignment are Campbell, 195 Kan. 66, and Howell v. Cooperative Refinery Ass’n, 176 Kan. 572, 271 P.2d 271 (1954). Both of these cases contain facts that are not present in the instant case.
In Howell, our Supreme Court examined a dispute arising from a contract between a geologist and an oil drilling firm. The geologist procured oil and gas leases in his own name and then leased them to the firm reserving an overriding royalty interest for himself in any extension or renewal of the lease. Almost 2 months after expiration of the leases, the firm negotiated a new lease without the geologist’s overriding royalty interest. The geologist sued. Our Supreme Court held that the overriding royalty interest applied to the second lease even though the second lease was entered after the original lease expired because of the confidential relationship between the parties. 176 Kan. at 578. The court observed that the contract created “a form of joint interest and joint ownership” between the parties which imposed a duty to protect their respective interests under the contract. 176 Kan. at 577. This special duty provided the court with the ability to enforce the renewal and extension provision even though the contract had technically expired.
Campbell involved an oil and gas lease between the Campbells and the Nako Corporation with the Klippels owning a VÍ6 of % overriding royalty interest in the lease. Without the Klippels’ knowledge, the Campbells colluded with a faction of Nako which had taken control of the company and obtained a lease forfeiture by default against the Klippels. Campbell and Nako then negotiated the lease without the Klippels’ overriding royalty interest. The Klippels sued to enforce their overriding royalty interest. Our Supreme Court noted:
“Most of the decided cases touching holders of an overriding royalty have arisen in controversies between the lessee and the overriding royalty holder, and here there seems clearly emerging a duty of fair dealing required on the part of the lessee (See 2 Williams and Meyers, Oil and Gas Law, § 420.2) to which doctrine this court has definitely inclined (Howell v. Cooperative Refinery Ass’n., 176 Kan. 572, 271 P.2d 271).
“Thus it would seem that the particular circumstances under which a lease is terminated and the presence or absence of bad faith does play a part in determining the duration of the overriding royalty. This would appear right and just as otherwise the holder is completely at the mercy of any collusive overreaching on the part of the owners of the other interests and, though having bargained in good faith for an interest in oil produced during the term of the lease, the law would be powerless to protect him from an unjust cancellation of that lease. The granting and reserving of overriding royalties is well known in the oil industry and the practice can and does serve both the landowners and the operating lessees’ interests in the procuring and developing of leases. There is no reason why such holders should not have the ordinary protection of the law from collusion and fraud.” 195 Kan. at 73.
The court held:
‘We hold that on bona fide forfeiture or surrender of a lease, the overriding royalty created thereunder falls with the lease. But if such forfeiture or surrender is obtained by fraud or collusion between the landowner and the lessee for the purpose of avoiding or cutting out the overriding royalty interest holder and the substitution of a new lease directly to the lessee, then a court of equity may grant relief to the overriding royalty holder against such forfeiture or surrender.” 195 Kan. at 75.
Under Campbell and Howell, a lessor owes a duty of fair dealing to a holder of an overriding royalty interest. A breach of this duty is shown if the lessor engaged in fraud, collusion, or bad faith with regard to the overriding royalty interest.
While the fact situation in Campbell does not involve an original lease assignment containing a renewal or extension clause, its holding appears equally applicable to such cases. Requiring holders of overriding royalty interests to show fraud, collusion, or bad faith in order to prove a breach of fair dealing grants both the lessor and the holder of the overriding royalty interest legal protection. See, e.g., Drilling, Inc., v. Warren, 185 Kan. 29, 35, 340 P.2d 919 (1959) (holding overriding royalty interest and extension clause terminated when the underlying lease terminated because oil exploration failed).
On appeal, Petex claims that Howell, 176 Kan. 572, requires that a confidential or fiduciary relationship exist before the duty of fair dealing is triggered. Such a rule would contradict the general principle stated in Campbell, 195 Kan. at 73. Petex is correct, however, when it points out that a breach of the duty of fair dealing requires a showing of fraud, collusion, or bad faith. Campbell, 195 Kan. at 75. Such a showing is a question of fact. See, e.g., In re Estate of Hessenflow, 21 Kan. App. 2d 761, 774, 909 P.2d 662 (1995), rev. denied 259 Kan. 928 (1996) (fraud is a question of fact); Warren, 185 Kan. at 32 (trial court instructed that bad faith is a question of fact).
Reynolds-Rexwinkle raised a material issue of a duty of fair dealing and bad faith which was not resolved in the district court’s decision. Such a dispute is material because the presence of one of these three factors would show that Petex breached its duty of fair dealing, which is required to conclude that the top lease is an extension of the original lease. The district court found that there was no confidential relationship between the parties in the instant case; therefore, the issues involved where there is a confidential relationship are not before this court. We hold that absent a contract provision that an overriding royalty interest in an oil and gas lease survives a subsequent top lease, a top lease extinguishes the overriding royalty interest, unless the holder of the overriding roy alty interest proves a breach of duty of fair dealing by showing that the lessor committed fraud, collusion, or bad faith in granting the top lease. The district court erred in granting summary judgment when it failed to require Reynolds-RexwinWe to prove that Petex’s actions were fraudulent, collusive, or in bad faith.
The district court assessed the costs of the action against Petex pursuant to K.S.A. 60-2002. It denied Reynolds-RexwinWe’s motion for attorney fees under K.S.A. 55-1617 because the case presented “a valid legal argument” as to the parties’ respective rights and responsibilities. The court awarded prejudgment interest to Reynolds-Rexwinkle under K.S.A. 16-201.
Reynolds-Rexwinkle claims that under K.S.A. 55-1614 et seq., the Kansas Interest on Proceeds from Production Act, it is a “payor” to whom Petex as “payee” owes a sum equal to the amount of its overriding royalty interest in the total oil production generated under the top lease. Furthermore, because Reynolds-Rexwinkle is entitled to compensation from Petex, it argues it is also entitled to attorney fees under K.S.A. 55-1617, which states: “The prevailing party in a proceeding brought pursuant to this act on which a judgment is rendered may recover court costs and reasonable attorney fees at the discretion of the court.”
Because the district court erred in granting summary judgment in this case, any resolution of the matter of court costs and attorney fees is premature. The district court’s error requires that its order assessing court costs and attorney fees be vacated and the matter reheard at the close of further proceedings if the parties raise the issue again.
Accordingly, we reverse the grant of summary judgment and remand the case to the district court for further proceedings consistent with the analysis set forth above.
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Knudson, J.:
Kenneth L. Morfitt appeals from jury trial convictions for attempted second-degree murder, K.S.A. 21-3402 and K.S.A. 22-3301, aggravated kidnapping, K.S.A. 21-3421, aggravated indecent liberties, K.S.A. 21-3504(a)(3), and aggravated burglary, K.S.A. 21-3716. He also appeals from the sentences that were imposed.
Morfitt contends the district court erred by: (1) failing to suppress his statement given during a custodial interrogation; (2) failing to obtain his personal consent in writing or on the record to a jury of less than 12 persons; (3) failing to instruct the jury on aggravated battery as a lesser included offense of attempted murder; (4) admitting into evidence certain items found in his car; (5) imposing a total sentence that was more than twice the base sentence of the primary crime; (6) failing to recognize the defense of voluntary abandonment; and (7) finding that the crime of aggravated kidnapping was not multiplicitous with the crimes of aggravated indecent liberties and attempted murder.
We conclude Morfitt did not personally waive his right to a 12-person jury; consequently, this case must be reversed and remanded for a new trial. We further conclude the district court erred by: (1) admitting into evidence certain items found in Morfitt’s car; (2) failing to instruct the jury on aggravated battery as a lesser included offense of attempted murder; and (3) finding that the crimes of aggravated kidnapping and aggravated indecent liberties were not multiplicitous. In view of these rulings, the sentencing issue is moot.
At approximately 1:30 a.m. on May 5, 1995, Morfitt went to the home of David S., ostensibly to speak with him. David was not at home. According to Morfitt, A.S., David’s 8-year-old daughter, let him into the house. A.S. testified at trial that she was in bed and awakened by Morfitt. After about 15 minutes in the house, Morfitt persuaded A.S. to go with him to look for her father. A.S. was wearing her night shirt and underwear. Unfortunately, the babysitter for A.S. was asleep when Morfitt came to the house and remained so until later in the morning when David came home.
Morfitt drove A.S. around Wichita for approximately 7 hours before returning her home. A.S. testified that, at some point, Morfitt asked her if she wanted to know what interested boys about girls and then placed his hand on the outside of her clothing, touching her breasts and vaginal area.
Sometime toward the end of her ordeal, A.S. also testified that Morfitt placed a sock around her neck and began choking her. After what A.S. estimated to be 2 minutes, Morfitt suddenly quit choking her. A.S. removed the sock from her neck and asked Morfitt why he had choked her. He replied that he was afraid that her father was going to kill him. As a result of this incident, A.S. had ligature marks around her neck, bruising, and skin hemorrhages around her left eye.
Miraculously, Morfitt then returned A.S. to her home about 8:30 a.m., where the police had already started an intensive investigation to ascertain her whereabouts.
The police obtained consent from Morfitt to search his car. During the search, they located and seized a white sock from the front seat area. They seized an ice pick and an empty box for a sexual device from under the front seat. From the back seat, they seized a cordless telephone belonging to David S. that either A.S. or Morfitt had taken, another white sock, and two unused condoms from the pocket of a pair of black jeans. From the trunk, they seized the broken sexual device belonging to the box found under the front seat, a sexual videotape, and several advertisements for 900 numbers for phone sex.
Morfitt gave a custodial statement to the police. He admitted asking A.S. to come with him and driving around Wichita looking for David until the next morning. He denied that he fondled A.S. or touched her in any sexual manner. Initially, he adamantiy denied ever choking A.S. but eventually changed his story and acknowl edged the incident occurred. Morfitt stated he did not know why he had done it. He admitted to being worried that David would hurt him for taking A:S. At one point, Morfitt told the police that he was just playing around when he put the sock aroirnd the neck of A.S. and that he removed it when she told him it was too tight. He steadfastly maintained that he never thought about killing A.S. but finally acknowledged that in retrospect “it looks like that’s what I was doing, yes, and I couldn’t do it.”.
Waiver of 12-Person Jury
At the commencement of trial,, after the jury had been impaneled and sworn, a juror informed the court of a death in his family that would require interruption of the proceedings. The trial judge explained that the trial would probably be continued until the juror could return. The jury then retired to discuss whether it would prefer to begin hearing evidence and then recess or postpone the trial until a later date. After the jury retired, Morfitt’s attorney informed the trial judge, “I have just conferred with Mr. Morfitt and we’re willing to go with a jury of 11. We are willing to waive [the juror’s] presence and proceed to trial, if that’s what the Court desires to do.” The State indicated it had no objection, and the trial resumed with an 11-person jmy. The trial court did not personally address Morfitt or question him about his willingness to waive his right to a 12-person jury; no written waiver was signed.
On appeal, Morfitt contends that the trial court, committed reversible error because there was noncompliance with K.S.A. 22-3403(2). The State counters that Morfitt was present in the courtroom and did not voice any objection when his attorney told- the court that Morfitt was willing to proceed with an 11-person jury. Thus, argues the State, Morfitt invited any error that occurred.
Because this is an issue of statutory and constitutional interpretation, our standard of review is unlimited. See State v. Robinson, 261 Kan. 865, Syl. ¶ 1, 934 P.2d 38 (1997).
K.S.A. 22-3403(2) states in relevant part: “A jury in a felony case shall consist of twelve members. However the parties may agree in writing, at any time before the verdict, with the approval of the court, that the jury shall consist of any number less than twelve.”
An almost identical issue was addressed and decided in State v. Roland, 15 Kan. App. 2d 296, 807 P.2d 705 (1991). After Roland’s trial began, a juror was excused because of a family death. The State, Roland’s attorney, and the trial court agreed to proceed with 11 jurors; Roland did not personally consent. The jury found Roland guilty, and he appealed, claiming his right to a 12-person jury was violated.
The Roland court noted that the Kansas Supreme Court in State v. Hood, 242 Kan. 115, 125, 744 P.2d 816 (1987), interpreted K.S.A. 22-3403(2) and held:
“ The defendant has a right to trial by jury. This is assured to him by sections 5 and 10 of the Bill of Rights of the Kansas Constitution and by the Sixth Amendment to the United States Constitution made applicable to the states through the Fourteenth Amendment. [Citations omitted.] . . . [S]ince the right belongs to the defendant, we conclude that the defendant personally, and not counsel for thé defendant, has the right to assent to a trial by less than a twelve-person jury.’ [Citation omitted.]” 15 Kan. App. 2d at 297.
In Roland, the Court of Appeals held that a defendant must be personally advised by the trial court of his or her right to a 12-person jury and must, thereáfter, personally and voluntarily waive that right in writing or in open court on the record and consent to a reduced number of jurors. 15 Kan. App. 2d 296, Syl. ¶ 3. The waiver must be made by the defendant, not the defendant’s attorney, and a waiver will not be presumed from a silent record. 15 Kan. App. 2d 296, Syl. ¶ 4.
Based upon Hood and Roland, we conclude that the trial court erred in failing to personally address Morfitt and obtain his personal waiver of a 12-person jury and consent to an 11-person juiy. The State’s contention that this can be considered invited error does not stand up under, these previous appellate decisions. We also agree with the Roland court that these are fundamental rights that preclude an analysis of harmless error. Consequently, we have no alternative but to reverse and remand this case for a new trial.
Admissibility of Confession
Morfitt argues that the trial court erred in failing to suppress the incriminating statements he made to detectives during a custodial interrogation. Morfitt’s specific complaint is that after he invoked his right to remain silent, the detectives continued to question him. The following statements were made during Morfitt’s interrogation:
“MM: [A.S.’s] story is you put a sock around her neck, tightened it up.
“KM: I didn’t do that.
“MM: I know, okay — okay, it’s not a deal of whether or not you did or didn’t do it, because I know you did it. Okay, now all we need to do is talk about why you did it. I just need to know, because I know you did it. Ken. Okay, relax. Just take it easy. Take a deep breath.
“KM: Youin’s are gonna send me to jail for something I didn’t do.
“MM: No, listen to me. We know you did it. We know that happened. What I need to know is I need to know is I need to be able to go to the District Attorney and say, look — Ken did this. Ken messed up.
“RC: Ken’s sorry.
“MM: You know, he realized it. He’s sorry, he’s very remorseful, but here’s why he did it. You know, he just got scared or whatever the reason this is why Ken did it.
“KM: Youin’s are throwing me in jail aren’t you?
“MM: That at this point, you know, we haven’t — you know, we’re not talking about that right now, okay. What we’re talking about is what I have to tell the District Attorney. ...
“KM: They’re my friends.
“MM: . . . Right, They’re your friends. But sometimes we do stuff. . . . And after it’s over they feel terrible because they lost control and that happens to a lot of people, a lot of people.
“KM: I don’t want to go to jail.
“MM: I know you don’t. I know you don’t. Okay. But let me help you. Let me tell the District Attorney what happened, because I don’t want them to draw their own conclusions. . . . They’re not here sitting here talking to you face to face. They’ve got to look at my report and they say, no, he was gonna kill her.
“KM: No, I wasn’t.
“MM: I don’t think you were either.
“RC: Ken.
“MM: I don’t think you were either. I’m on your side Ken. I want to tell you— “KM: You all are scaring me I think, yeah, I shouldn’t—
“MM: No.
“KM: —say anymore.
“MM: Okay, you want to, you know, quit talking?
“KM: Well it makes — it makes me feel like you all are sitting [sic] me up to go
“RC: Well, Ken, you got somebody who did something. Okay. They got caught and they did something. You got another person who got caught doing the same thing. Okay. This person over here, says, no, didn’t do it — didn’t do it. This person over here says, yeah, I did it and I’m sorry. Okay.
“MM: And do you—
“RC: Which person is gonna get the help.
“MM: Do you want to talk to me or not? If you don’t want to talk to me, you don’t have to.
“KM: No, I do want to talk to you.
“MM: Well, you just—
“KM: But I don’t want to go to jail—
“MM: —okay, okay—
“KM: —for something that—
“MM: —okay, hold on just a minute. You just made a statement that you thought maybe you shouldn’t talk to me. I want to talk to you, but I need to know whether or not you want to. You said you know, you think maybe you shouldn’t but you don’t know. You know, tell me—
“KM: I do want to talk.”
The above excerpts from the transcript of Morfitt’s interrogation disclose that, at one point, he stated he should not make any further statements. He contends this was an unconditional declaration of his desire to remain silent, which the officers should have scrupulously honored pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). We disagree because Morfitt’s invocation was equivocal and almost immediately was followed by his expressed desire to keep talking to the detectives.
This issue is controlled by Davis v. United States, 512 U.S. 452, 459, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994), and State v. Hickles, 261 Kan. 74, 929 P.2d 141 (1996), which reads:
“[T]he United States Supreme Court held that if an accused’s reference to a Miranda right is ambiguous or equivocal to a reasonable officer in light of the circumstances, the officer is not required to ask clarifying questions or cease questioning and may continue questioning until the suspect clearly invokes a right.” 261 Kan. at 80.
There is very little difference between what the defendant said in Davis, and what Morfitt said in this case. In Davis, the suspect, during questioning by officers, stated, “Maybe I should talk to a lawyer.” 512 U.S. at 455. The Supreme Court found that that was sufficiently ambiguous that it did not require a cessation of the questioning. Clearly, Morfitt’s statement “You all are scaring me I think, yeah, I shouldn’t . . . say anymore” is not constitutionally distinguishable.
Morfitt also attempts to distinguish this case from Davis because Davis involved the Sixth Amendment right to counsel and this case involves the Fifth Amendment Right to silence. This argument lacks legal merit. The Kansas Supreme Court in Hickles, 261 Kan. at 80, interpreted the Davis case as applicable to Miranda rights in general and not just the right to counsel.
We conclude the district court did not err in failing to suppress Morfitt’s statement.
Battery as a Lesser Included Offense of Attempted Murder
Morfitt was charged in count four of the information with attempted premeditated murder. The trial court also instructed the jury on the lesser included offense of attempted second-degree murder but denied the defendant’s request to instruct on aggravated battery. Morfitt acknowledges that aggravated battery is not a lesser included offense of attempted first-degree murder under the “identity of the elements” test, but claims that it is a lesser included offense under the second prong of State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988).
The second prong of the Fike test requires the trial court to examine the allegations of the charging document and the evidence which must be adduced at trial to prove the charged crime. If the evidence that must be presented to support the crime as charged also proves the lesser crime, then the lesser crime is an “included crime” under K.S.A. 21-3107(2)(d), and the jury must be instructed accordingly. 243 Kan. at 368.
Count four of the information charging Morfitt with attempted first-degree murder states:
“[0]n or about the 5th day of May, 1995, A.D., in the County of Sedgwick, and State of Kansas, one Kenneth L. Morfitt did then and there unlawfully, towards the perpetration of the crime of First Degree Murder, as defined by K.S.A. 21-3401, commit the following overt acts, to-wit: placed a sock around [A.S.’s] neck and tightened it, causing inability to breath, redness, and abrasions, with the intention to commit said crime, and the said Kenneth L. Morfitt failed in the perpetration thereof.”
Aggravated battery, K.S.A. 21-3414(1)(B), is defined, in material part, as “intentionally causing bodily harm to another person ... in any manner whereby great bodily harm . . . can be inflicted.”
The evidence presented at trial was uncontroverted that Morfitt placed a sock around the neck of A.S., choking her. There was no other evidence presented or relied upon by the State to prove the overt act alleged in the information. We conclude the evidence that was essential to prove attempted murder also proved an aggravated battery.
We find support for our conclusion in State v. Smith, 245 Kan. 381, 391-92, 781 P.2d 666 (1989), wherein Chief Justice McFarland (then Justice McFarland) stated:
“An act of first-degree premeditated murder by means of shooting, beating, or stabbing, etc. requires proof of an aggravated battery. Had the victim survived the charge could have been attempted murder or aggravated battery but not both. No case has been cited where a single act constituting aggravated battery has been held to constitute both aggravated battery and a homicide.” (Emphasis added.)
We readily acknowledge Smith dealt with the issue of multiplicity of charges, but it nevertheless speaks directly to the significance of a single underlying act that establishes the commission of a lesser included offense.
We conclude that the failure to instruct the jury on the lesser included offense of aggravated battery constitutes reversible error. At retrial of this case, the district court should instruct the jury upon aggravated battery as a lesser included offense of the attempted homicide alleged in count four of the information.
Items Admitted Into Evidence
Morfitt next argues that the district court erred in admitting into evidence over timely objection an ice pick, condoms, the sexual device box, the sexual device, and an “Anal Torture” video. At trial, the State reasoned that the evidence was admissible as res gestae evidence because the ice pick showed Morfitt’s intent to commit premeditated murder and because the other items showed Morfitt’s intent to commit a sexual act upon A.S.
Morfitt notes that there is no connection between the items and the criminal charges filed against him. He contends that the evidence did not have a natural or logical connection to the crimes and that their prejudicial effect outweighed any probative value.
Whether the district court erred in the admission of the physical evidence raises an appellate issue of abuse of discretion. See State v. Sexton, 256 Kan. 344, 353, 886 P.2d 811 (1994). Evidence may be properly admitted which does not constitute a portion of the crimes charged but which has a natural, necessary, or logical connection to the crime. State v. McClanahan, 254 Kan. 104, 116, 865 P.2d 1021 (1993). For matters to be admissible before, during, or after the happening of the principal event as a part of the res gestae, they must be “so closely connected with it as to form in reality a part of the occurrence.” State v. Davis, 236 Kan. 538, 539, 694 P.2d 418 (1985).
Under the facts of this case, there was no justification for the admission of the complained-of evidence as a part of the res gestae of the crime. The State appears to contend that because Morfitt was charged with premeditated attempted murder and a sexual crime, anything that could have been used as a weapon or anything relating to sex would somehow have sufficient relevance to substantiate the connection. K.S.A. 60-401(b) provides that relevant evidence is evidence having any tendency to prove a material fact. To be admissible, evidence must be confined to the issues but need not bear directly upon them. State v. Wagner, 248 Kan. 240, 243, 807 P.2d 139 (1991).
In Sexton, the Supreme Court stated:
“Twenty years ago, in State v. Fagan, 213 Kan. 587, 589, 518 P.2d 552 (1974), this court cited the following rule from 22A C.J.S., Criminal Law § 628, pp. 472-73: ‘The rule is, generally, that evidence of the attending circumstances at the time an accused is arrested, including articles of property which are found in his possession, is relevant and admissible where the circumstances logically tend to connect the accused with the crime charged.’ ” 256 Kan. at 353.
In the case at hand, with the exception of the cordless telephone, there is no logical connection between the items taken from Morfitt’s car and die crimes he was accused of committing. Regarding the ice pick: Morfitt was accused of attempted premeditated mur der by placing “a sock around [A.S.’s] neck” and attempting to strangle her. He was not accused of attempting to stab her with an ice pick, using an ice pick to scare her, or even threatening her with an ice pick or some other similar object. The State did not attempt to allege that he brought the ice pick with him in preparation for the crime. On the contrary, the evidence showed that Morfitt was storing his personal belongings in the car and that the ice pick was normally carried in the car. In addition, the evidence was clear that A.S. never saw or heard about the ice pick.
Similarly, with regard to the sexual items, Morfitt was accused of fondling an 8-year-old child. There was no indication that he used any of the items taken from his car during the perpetration of the crimes, and the State did not attempt to argue that Morfitt brought the items with him with the intent to use them on A.S. Again, the evidence shows that A.S. was not aware of the items, that the items were generally stored in the car, and that the most egregious items were in the locked trunk. It should also be noted that none of the sexual items involved child pornography or would otherwise have probative value.
The Supreme Court addressed a similar situation in State v. Bornholdt, 261 Kan. 644, 932 P.2d 964 (1997). Bomholdt was accused of criminal possession of a firearm and first-degree murder of a witness to a drag deal. The police found drags and drag paraphernalia in Bomholdt’s car, and the district court allowed the admission of the evidence during Bomholdt’s trial as a part of the res gestae of the crime. 261 Kan. at 658.
On appeal, Bomholdt argued that no direct connection could be made between the drags or drag paraphernalia and the commission of the murder. Bomholdt contended that the evidence did not have a natural or logical connection to the murder and that the prejudicial effect outweighed the probative value. The Supreme Court found that the evidence was “clearly not part of the res gestae.” 261 Kan. at 660. The court stated:
“We understand the State’s contention that because the death of the victim was theorized to have resulted from his testimony in a drug case, anything relating to drugs would somehow have sufficient relevance to substantiate the connection. K.S.A. 60-401(b) provides that relevant evidence is evidence having any tendency to prove a material fact. To be admissible, evidence must be confined to the issues but need not bear directly upon them. State v. Wagner, 248 Kan. 240, 243, 807 P.2d 139 (1991).
“Once again, the connection between the evidence and murder in the present case requires an unrealistic leap of faith, and we are left with the undeniable conclusion that the admission of the drug and drug paraphernalia evidence was erroneous.” 261 Kan. at 660.
Also, the connection between the evidence admitted in the case now before us and the crimes charged requires an “unrealistic leap of faith.” The evidence was not part of the crimes charged and had no tendency to prove a material fact. We conclude the trial court did err in admitting the evidence and upon retrial the evidence should be excluded.
The Defense of Voluntary Abandonment
Morfitt contends that the evidence is insufficient to support his conviction for attempted second-degree murder because he voluntarily abandoned the attempt or, in the alternative, the . court erred by not instructing the jury on voluntary abandonment as a defense to attempted first-degree murder.
“When the sufficiency of the evidence is challenged, the standard of review on appeal 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 defendant guilty beyond a reasonable doubt.” State v. Pratt, 255 Kan. 767, Syl. ¶ 1, 876 P.2d 1390 (1994).
K.S.A. 21-3301(a) defines an attempt as “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.”
Morfitt argues that his failure to complete the commission of a crime precludes conviction because he voluntarily abandoned any intent to commit murder. This argument is wholly without merit. One writer on this very subject has noted:
“Assuming a defense of voluntary abandonment, does there come a point at which it is too late for the defendant to withdraw? Obviously there must be, for it would hardly do to excuse the defendant from attempted murder after he had wounded the intended victim or, indeed, after he had fired and missed. It might even be argued that it is too late whenever the defendant has táken the last proximate step, for at that point his dangerousness is not rebutted by the withdrawal.” 2 LaFave & Scott, Substantive Criminal Law § 6.3, p. 57 (1986).
Morfitt’s argument comes down to the absurd proposition that he should be excused from attempted murder after he injured A.S. To the contrary, at that point in time, his “dangerousness [was] not rebutted by [his] withdrawal.” Consequently, even if Kansas were to recognize a defense of voluntary abandonment, it would not be applicable in this case. We conclude there was substantial competent evidence to support the jury’s verdict finding Morfitt guilty of attempted murder in the second degree and an instruction regarding voluntary abandonment would not have been appropriate.
Multiplicitous Charges
Finally, Morfitt contends that the district court erred in finding that the charge of aggravated kidnapping was not multiplicitous with the charges of aggravated indecent liberties and attempted murder. He asks this court to reverse his conviction for aggravated kidnapping and order the district court to impose a. sentence for simple kidnapping.
The difference between aggravated kidnapping and simple kidnapping is that the former requires the additional element that bodily harm be inflicted upon the person kidnapped. See K.S.A. 21-3420; K.S.A. 21-3421. In the information, the State alleged that the bodily harm or force element was committed when Morfitt committed aggravated indecent liberties upon A.S. Morfitt does not argue that the act of indecent liberties in this case was not sufficient to establish bodily harm.
. “Multiplicity exists when the State attempts to use a single' wrongful act as the basis for multiple charges.” State v. Garnes, 229 Kan. 368, 372, 624 P.2d 448 (1981). Whenever an element of one crime provides the basis for a necessary element of another crime, the State may not charge the defendant with both crimes.
“Those charges which make up an integral part of another crime of which the defendant is convicted must be dismissed as multiplicitous. [Citation omitted.] The charging of a single offense as two or more separate crimes is improper because a single wrongful act should not be punished more than one time.” State v. Perry, 16 Kan. App. 2d 150, 152, 823 P.2d 804 (1991). See State v. Brewer, 11 Kan. App. 2d 655, 662, 732 P.2d 780, rev. denied 241 Kan. 839 (1987).
The question of whether charges are multiplicitous is a question of law. This court’s review of conclusions of law is unlimited. See Perry, 16 Kan. App. 2d at 151.
The district court erred in finding that the crime of aggravated kidnapping was not multiplicitous with the charge of aggravated indecent liberties. The evidence revealed that Morfitt placed his hands on A.S.’s breasts and then on her vaginal area. It was never alleged that these events were separated by time and space. A reading of the trial transcripts and A.S.’s deposition appears to indicate that the touching occurred at the same time and was, therefore, one continuous act of force. See State v. Harkness, 252 Kan. 510, 532-33, 847 P.2d 1191 (1993) (holding charge of kidnapping multiplicitous with aggravated assault because it was one continuous act of force).
Accordingly, we conclude that under the information and the evidence adduced at trial, the crimes of aggravated indecent liberties and aggravated kidnapping are multiplicitous.
Reversed and remanded for new trial.
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Lewis, J.:
Defendant was charged with 11 counts of aggravated incest. He entered into a plea agreement with the prosecutor wherein he pled guilty to five counts of aggravated incest in exchange for the prosecution’s dismissal of the other six counts. He was sentenced to three consecutive terms of 2 to 5 years and two concurrent terms of 2 to 5 years. He now seeks to withdraw his plea of guilty. The trial court denied defendant’s 60-1507 motion to withdraw his plea of guilty, and defendant appeals.
Defendant argues he should have been permitted to withdraw his plea of guilty on the ground that it was involuntary. His basis for this allegation is that the trial court should have advised him about the Kansas Sexually Violent Predators Act (KSVPA) and its potential effect on him. He argues that without such advice, his plea was not knowingly made and was involuntary. He also claims ineffective assistance of counsel and argues that his lawyer should have advised him of the KSVPA and its potential effect.
A defendant may withdraw his or her plea of guilty after sentencing if doing so will correct a manifest injustice. K.S.A. 1997 Supp. 22-3210(d). Defendant argues it was manifestly unjust for the trial court to accept his plea of guilty when neither the court nor his attorney had advised him of fhe consequences of the KSVPA.
The first issue we must decide, and it is an issue of first impression, is whether a trial court, in a sex crime case, must advise the defendant of the potential effects of the KSVPA on such defendant before accepting a plea of guilty to a sex crime charge. We conclude the trial court is not so required.
The KSVPA is found at K.S.A. 59-29a01 et seq. It is an action that is civil in nature and is part of our probate code. See In re Care & Treatment of Hay, 263 Kan. 822, 829, 953 P.2d 666 (1998). The KSVPA provides for the involuntary civil commitment of a certain class of sex offenders. K.S.A. 59-29a01. The State can seek such a commitment if it can convince a jury beyond a reasonable doubt that the person in question is a “sexually violent predator.” K.S.A. 1997 Supp. 59-29a07(a). It is important to note that the application of fhe KSVPA is neither inevitable nor automatic in the case of persons charged with or convicted of sex crimes. Its application is simply a matter of discretion to be exercised by fhe State. The attorney general is authorized to bring the action within his or her sole discretion. K.S.A. 1997 Supp. 59-29a04.
In Cox v. State, 16 Kan. App. 2d 128, Syl. ¶ 1, 819 P.2d 1241 (1991), rev. denied 250 Kan. 804 (1992), we held:
“Under K.S.A. 22-3210, a trial court is required to inform the defendant of the direct penal consequences of a guilty plea before accepting the guilty plea. The trial court is not required to inform a defendant of the collateral consequences of a guilty plea, including the loss of certain civil rights or privileges.” (Emphasis added.)
In Cox, we held that the civil rights which the defendant faced losing by virtue of his guilty plea were merely “collateral consequences which are not included in the mandates of K.S.A. 22-3210.” 16 Kan. App. 2d at 130-31. There are a number of other decisions in other jurisdictions concerning the same issue. See Sanchez v. United States, 572 F.2d 210 (9th Cir. 1977) (possible revocation of parole is collateral); Faulisi v. Daggett, 527 F.2d 305 (7th Cir. 1975) (possibility that .a federal sentence might be ruled to run consecutive to a state sentence already imposed is collateral); Redwine v. Zuckert, 317 F.2d 336 (D.C. Cir. 1963) (undesirable military discharge is collateral); State v. Heitzman, 209 N.J. Super. 617, 622, 508 A.2d 1161 (1986), aff’d 107 N.J. 603, 527 A.2d 439 (1987) (effects on voting rights, immigration status, auto license, and military discharge are all collateral).
In City of Ottawa v. Lester, 16 Kan. App. 2d 244, 248, 822 P.2d 72 (1991), we noted that collateral consequences are “ ‘definite, immediate, and largely automatic [results] of the guilty plea.’ ” In Lester, we held the trial court was not required to inform the defendant that his driver’s license could be suspended as a result of his guilty plea under K.S.A. 1990 Supp. 8-1014(c)(2). 16 Kan. App. 2d at 248.
In In re J.C., 260 Kan. 851, 858, 925 P.2d 415 (1996), the Supreme Court upheld our definition of collateral consequences as used in Lester and held that “[d]ue process does not require a judge to inform a juvenile that a stipulation to a felony offense may be used subsequently to determine his or her status as a juvenile offender.”
Our research has indicated that at least one state has held that a trial court’s failure to advise a defendant of sex offender registra tion requirements is no basis for withdrawal of a guilty plea. Benitez v. State, 667 So. 2d 476 (Fla. Dist. App. 1996).
Based upon the decisions cited above, we hold that the potential application of the KSVPA is, at most, nothing more than a collateral consequence of a plea of guilty to a sex crime. As a result, under the settled law of this state, a trial court is not required to advise a defendant concerning the effect of the KSVPA prior to accepting the defendant’s guilty plea to a violent sexual offense.
We also note that defendant’s guilty plea did not subject him to the KSVPA to any greater extent than merely being charged with a violent sexual offense. By statutory definition, a sexually violent predator means “any person who has been convicted or is charged, uñth a sexually violent offense.” K.S.A. 1997 Supp. 59-29a01(a). By merely being charged, defendant was potentially subject to the KSVPA. His plea of guilty did not change that status and, from that point of view, it is difficult to see where defendant can show any prejudice in the trial court’s failure to advise him of the consequences of the KSVPA. He was already subject to the KSVPA prior to that plea.
In this state, the trial court is only required to inform a defendant of the consequence of his plea of guilty if that consequence is definite, immediate, and almost automatic as a result of his guilty plea. 16 Kan. App. 2d at 248. In the instant matter, there is nothing definite or automatic or immediate about the possible application of the KSVPA. The trial court was not required to advise this defendant of the possibility that the KSVPA might be invoked against him at some time in the future.
We have reviewed the record in this case, and we hold there is substantial competent evidence to support the trial court’s denial of defendant’s motion to withdraw his plea because defendant presented no credible evidence of manifest injustice.
Defendant next argues that he received ineffective assistance of counsel as a result of his trial lawyer’s failure to advise him of the potential effects of the KSVPA.
Our standard of review on issues such as this is as follows:
“ To set aside a guilty plea because of ineffective assistance of counsel based on an allegation that counsel’s conduct rendered the plea involuntary, a defendant must show counsel’s performance fell below the standard of reasonableness and there is a reasonable probability that, but for counsel’s ineffectiveness, the results would have been different.” Garrett v. State, 20 Kan. App. 2d 513, 514, 889 P.2d 795, rev. denied 257 Kan. 1091 (1995).
In Garrett, we went on to say:
“ ‘Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” 20 Kan. App. 2d at 514-15 (quoting Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 [1985]).
In State v. Solomon, 257 Kan. 212, 223, 891 P.2d 407 (1995), the court said: “Defense counsel has an obligation to advise a defendant as to the range of permissible penalties and to discuss the possible choices available to the defendant.”
We conclude that defendant’s counsel’s performance did not fall below the standard of reasonableness. The KSVPA is a civil act, and its proceedings are civil in nature. As Solomon indicates, trial counsel is only required to discuss possible criminal sanctions, not the civil penalty. We think this approach is reasonable when the collateral consequences doctrine is applied to this case. It is unclear now and will remain so in the future whether the KSVPA will ever apply to defendant because he has not yet finished his criminal sentence. The uncertainty inherent in predicting whether the KSVPA will ever be invoked against defendant is such that the failure of his counsel to advise him of potential consequences cannot be said to be constitutionally deficient.
In addition, to prove ineffective assistance of counsel, we must find there is a reasonable probability that but for counsel’s ineffectiveness, the results in this case would have been different. Garrett, 20 Kan. App. 2d at 514. Defendant, in his 60-1507 petition, does not flatly state that his decision to plead guilty would have changed had he known of the KSVPA. We look at the realities of the situation. As a result of his plea of guilty, defendant managed to avoid six identical charges of aggravated incest, and the State agreed not to seek the maximum sentence. We are not willing to assume that defendant is so lacking in judgment that he would have risked a much longer sentence by going to trial if he had known that sometime in the distant future the KSVPA might have been applied to him.
We see nothing in the record to indicate that defendant’s decision to plead guilty would have changed had he been advised of the consequences of the KSVPA.
Affirmed.
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Pierron, J.:
In this direct sentencing appeal, Jeffrey A. Schick appeals the district court’s failure to consider placement in the Labette Correctional Conservation Camp (Labette) during his sentencing. Schick was convicted of two counts of aggravated burglary, two counts of burglary, and two counts of aggravated assault. His criminal history classification was 5-H, a border box on the nondrug grid. The court sentenced Schick to 62 months’ incarceration.
K.S.A. 1996 Supp. 21-4603d(a) provides that prior to sentencing a defendant to incarceration whose offense is classified in grid blocks 5-H, 5-1, or 6-G of the sentencing guidelines grid for non-drug crimes, the court “shall consider placement of the defendant in the Labette correctional conservation camp.” The court in State v. Billington, 24 Kan. App. 2d 759, Syl. ¶ 5, 953 P.2d 1059 (1998), stated: “The failure of a trial court to consider placing a defendant in the Labette Correctional Conservation Camp as required by K.S.A. 1996 Supp. 21- 4603d requires that the sentences imposed be vacated and die matter remanded for resentencing.” See also State v. Williams, 24 Kan. App. 2d 447, Syl., 946 P.2d 98 (1997) (In a parole revocation, the failure to consider. Labette will result in a reversal of the revocation and a remand for a new hearing.).
The State sets forth two responsive arguments. First, the State argues jurisdiction is lacking in Schick’s appeal because the court imposed a sentence within the presumptive sentencing range and therefore his sentence is not subject to appeal. See State v. Bost, 21 Kan. App. 2d 560, Syl. ¶ 4, 903 P.2d 160 (1995). Appellate courts are without jurisdiction to consider appeals from a sentence entered for a felony committed after July 1, 1993, where the imposed sentence is within the range of the appropriate border box classification, such sentence of imprisonment or probation is the presumptive sentence for purposes of appeal and is not subject to appellate review. K.S.A. 1996 Supp. 21-4704(a) and (f). •
Second, the State maintains that even if this court concludes it has jurisdiction, Schick failed to prove that space was available at Labette and that he met all the placement criteria. The State also suggests a harmless error analysis because the court considered placement in a residential treatment center, but found that prison would be more effective for Schick and would serve the community interests better. The State contends the court’s comment concerning the residential center applies equally to consideration of Labette.
We are not convinced by the State’s harmless error analysis. The statute does not require the defendant to provide the information suggested by the State before the district court considers Labette.
As to the other argument, at sentencing, Schick suggested he could benefit from the residential treatment center in Gardner. The State maintains the district court’s reasoning in denying this request applies equally to the court’s duty to consider Labette. We disagree. K.S.A. 1996 Supp. 21-4603d(a) does not suggest that consideration of any other treatment center would comport with the mandates of the statute.
The State correctly argues that this court is without jurisdiction to consider a sentence within the presumptive sentencing range for the crime. See K.S.A. 21-4721(c)(l); State v. McCollum, 21 Kan. App. 2d 40, Syl. ¶ 3, 895 P.2d 1258, rev. denied 258 Kan. 862 (1995). However, a finding that this court is without jurisdiction to consider whether the district court contemplated Labette before incarcerating a border box defendant would eliminate any type of review of whether the district court followed the mandates of the K.S.A. 1996 Supp. 21- 4603d(a). This cannot be the intent of the legislature. There is a presumption that the legislature does not intend to enact useless or meaningless legislation. In re Adoption of Baby Boy L., 231 Kan. 199, Syl. ¶ 7, 643 P.2d 168 (1982).
K.S.A. 1996 Supp. 21-4603d(a) is very clear concerning the district court’s duty to consider Labette in appropriate situations and to note its consideration on the record. Case law supports this duty. See Bittington, 24 Kan. App. 2d at 764-65; Williams, 24 Kan. App. 2d at 449. One of those situations is when the court imposes an imprisonment sentence on a defendant who falls within a nondrug border box classification. We realize consideration of this appeal is seemingly contrary to the jurisdictional provisions outlined in K.S.A. 1996 Supp. 21~4704(f) and Bost. However, we feel strict compliance with K.S.A. 1996 Supp. 21-4603d(a) is mandated, and the result is in accordance with Bittington and Williams. Any change in this procedure must come from the legislature.
Schick’s sentence is set aside. The matter is remanded for re-sentencing for the district court to consider Labette.
Reversed and remanded.
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Pierron, J.:
Gregory A. Lopez appeals the district court’s order that he register in accordance with the Kansas Sex Offender Registration Act (KSORA, K.S.A. 22-4902 etseq.). He argues his crime of attempted aggravated burglary does not fall within the provisions of the KSORA.
This court recently addressed the KSORA in State v. Patterson, 25 Kan. App. 2d 245, 963 P.2d 436 (1998); there the defendant pled guilty to burglary, theft, and possession of marijuana. When police officers searched the defendant’s house, they opened a locked cabinet and found numerous pornographic materials and 11 items of women’s thong underwear belonging to defendant’s next door neighbor. The Patterson court affirmed the trial court’s ruling that defendant’s theft of the underwear while burglarizing the victim’s home was sexually motivated under K.S.A. 22-4902(b)(12), and he was properly ordered to register under the KSORA.
We must decide whether the district court’s ruling that Lopez’ crime was sexually violent is supported by substantial competent evidence. See Patterson, 25 Kan. App. 2d at 247. Under K.S.A. 22-4902(b)(12), Lopez is guilty of a sexually violent crime if he committed “any act which at the time of sentencing for the offense has been determined beyond a reasonable doubt to have been sexually motivated.” Under the statute, “ ‘sexually motivated’ means that one of the purposes for which the defendant committed the crime was for the purpose of the defendant’s sexual gratification.” K.S.A. 22-4902(b)(12). Furthermore, an attempt, conspiracy, or criminal solicitation of a sexually violent crime also qualifies as a sexually violent crime under K.S.A. 22-4902(b)(ll).
The district court’s finding that Lopez’ crime was a sexually violent crime is supported by the evidence. Lopez pled guilty to a charge of attempted aggravated burglary with the underlying felony being the intent to commit a sexual battery. The victim testified she awoke in the middle of the night to find Lopez naked, standing over her. They were apparently not acquainted. There was substantial competent evidence to require Lopez to register under the KSORA.
We also agree with the State that Lopez’ claims of a violation of his right to be free of ex post facto laws is not implicated. First, he did not raise this issue with the trial court. “When constitutional grounds are asserted for the first time on appeal, they are not properly before [the appellate court] for review.” State v. Shears, 260 Kan. 823, Syl. ¶ 8, 925 P.2d 1136 (1996). Second, the express statutory language of the KSORA permits registration for offenders who are convicted of attempted sexually violent crimes, which under K.S.A. 22-4902(b)(12) includes sexually motivated crimes. Lopez’ registration is not a judicial enlargement of a criminal statute.
After thorough consideration of the arguments raised on appeal and review of the entire record, Lopez’ conviction is affirmed.
Affirmed.
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Lewis, J.:
In 1993, Eldon L. and Rebecca Meigs filed a lawsuit against the defendants, John V. Black and Withers Investment, Inc. This case was never brought to trial but was settled, and the settlement was formalized in a journal entry. The journal entry required the Meigs to build a fence within 60 days of July 10,1995, along a designated property line.
The Meigs failed to build a fence by the date specified. The defendants instituted indirect contempt proceedings against the Meigs; only Eldon Meigs was adjudged to be in contempt of court and fined $500, which was to be paid to the defendants. Meigs appeals from that adjudication.
Indirect civil contempt is provided for by K.S.A. 1997 Supp. 20-1204a. In order to institute a proceeding for indirect contempt, a party is required to file “a motion requesting an order to appear and show cause which is accompanied by an affidavit specifically settingforth the facts constituting the alleged violation.” (Emphasis added.)
Meigs argues, and we agree, that the defendants’ motion seeking to have him held in contempt was not supported by an affidavit as required by statute. The law of this case is that an affidavit and an acknowledgement are not the same, and the moral is that it is important to know the difference between the two.
The motion for contempt under K.S.A. 1997 Supp. 20-1204a is construed stricdy against the movant. The procedures prescribed by the statute must be followed. In re Seelke, 235 Kan. 468, 470-71, 680 P.2d 288 (1984); Electronic Realty Assocs., Inc. v. Gomez, 18 Kan. App. 2d 122, 127, 848 P.2d 458 (1993).
In this case, the motion setting forth the facts of the violation was signed by John V. Black and contains the following acknowledgements:
“STATE OF KANSAS, COUNTY OF PRATT, SS:
“BE IT REMEMBERED THAT ON THIS 22nd day of November, 1995, before me, the undersigned, a Notaiy Public in and for the County and State aforesaid, came JOHN V. BLACK, who is personally known to me to be the same person who executed the foregoing instrument of writing, and such person acknowledged the execution of the same, as President of Withers Investment, Inc.
“IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my official seal the day and year last above written.
/s/ Debra K. Patterson
NOTARY PUBLIC”
It is perfectly obvious to anyone who knows the difference that this instrument was acknowledged and not sworn to. At no place in the acknowledgement language is there any indication that the affiant was put under oath or that he swore to the truth of the allegations set forth.
The question of whether a document constitutes an affidavit is normally a question of law. Eveleigh v. Conness, 261 Kan. 970, 975, 933 P.2d 675 (1997). An affidavit is a written statement, under oath, sworn to or affirmed by the person making it before some person who has the authority to administer an oath or affirmation. State v. Knight, 219 Kan. 863, 867, 549 P.2d 1397 (1976). Whether a document is an affidavit depends upon whether the sponsor swore to the contents of the document. Eveleigh, 261 Kan. at 981. A document that is simply acknowledged before a notary public is not an oath and does not meet the requirements for an affidavit. 261 Kan. at 978; Knight, 219 Kan. at 867.
We agree with the defendants that a document which has no jurat, or certificate that it was sworn to by the person who signed it, may be shown to be an affidavit by other evidence. See Eveleigh, 261 Kan. at 979-80; State v. Journey, 1 Kan. App. 2d 150, 152, 562 P.2d 138 (1977). This may be an interesting intellectual observation; however, it has nothing to do with this case since the defendants failed to offer any evidence concerning the making of the document, and there is certainly no evidence indicating that the individual who signed the document was placed under oath prior to doing so.
In Knight, the Kansas Supreme Court held that an acknowledgement was not a document under oath. “Since it is essential to the validity of an affidavit that it be sworn to or affirmed before some person, the requirements for an affidavit are not met.” 219 Kan. at 867. In this case, the defendants’ motion lacked an affidavit, the motion was insufficient, and the trial court erred in holding Meigs in indirect contempt.
The defendants have argued that Meigs waived his right to object to the form of the affidavit. We do not agree. Meigs and his attorneys argue there was no proper affidavit supporting the motion and that the court lacked jurisdiction to consider the matter. They stated they did not object to proceeding with the hearing on the merits but were not waiving the jurisdictional defect.
We agree that Meigs did not waive his right to object to the form of the affidavit.
Reversed.
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Knudson, J.:
Ruby Meyer appeals the district court’s interpretation of Marie R. Mildrexter’s last will and testament and the denial of her request for attorney fees. We affirm.
Marie Mildrexter died testate on May 28, 1995. Her rather lengthy will delineated bequests of personal effects in paragraphs 4 through 23. These bequests were to various family members and included such items as latch-hook rugs, jewelry, diamonds, a tablecloth, quilts, dishes, afghans, an antique lamp, furniture, pictures, camera equipment, clothes, personal items, and the family history Marie had written. Several specific bequests were made to Ruby, including all of Marie’s photographs, cameras, projectors, and photographic equipment, their grandmother’s clock, the family history, and her clothes and personal items, as well as a diamond ring. Paragraph 24 then provided: “I request my executors to have an auction amongst my family members ... to auction off my other personal property iteins not specifically bequeathed. The proceeds shall be divided equally between my brothers and sisters who survive me.” (Emphasis added.)
In addition to her personal effects, Marie’s estate also contained substantial amounts of government bonds, certificates of deposit, and stocks. Paragraph 29 of Marie’s will authorized her executors to sell all of the balance of her real and personal properly at public auction, or at private sale, with the proceeds to pass under the residuary clause of her wall. The residuary clause found in paragraph 33 of the will directed that “[a]ll of my property, both real and personal, wherever the same may be situated, subject only to the special provisions set forth in this my Last Will and Testament, shall go to the Frank and Marie Mildrexter Foundation Trust . . . .”
Ruby is Marie’s only surviving sibling. In her petition, Ruby requested that the district court construe the will as requiring that all of Marie’s personal property, not just her personal effects, be subject to paragraph 24, the private family auction provision of the-wall.
The district court concluded that the provisions in the will were not ambiguous and Marie’s clear intent as expressed in paragraph 24 w?as that “personal property items” meant personal effects such as household goods and personal belongings and did not include stocks, CDs, and the other personal property that would pass through the residuary clause of the will.
Ruby filed a request for attorney fees, arguing her attorney’s services ultimately benefitted the estate as required by K.S.A. 59-1504. The district court denied this request because the estate was not benefitted by Ruby’s petition to construe the will and her claim was unsuccessful.
On appeal, Ruby contends the term “personal property” referred to in item 24 of Marie’s wall should be interpreted to include all property except real estate, and thus the district court erred in construing the term to not include stocks, CDs, and other personal property.
The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court. In re Estate of Cline, 258 Kan. 196, 199, 898 P.2d 643 (1995). Where a court is to determine the effect of a will, its first duty is to survey the instrument in its entirety and determine whether its language is so indefinite and uncertain as to require employment of rules of judicial construction. 258 Kan. at 199. The critical test in determining whether a will is ambiguous is whether the intention of the testator can be gathered from the four comers of the instrument itself. If so, ambiguity does not exist. In re Estate of Brecklein, 6 Kan. App. 2d 1001, 1007, 637 P.2d 444 (1981). Whether an instrument is ambiguous is a matter of law to be decided by the appellate court. In re Estate of Sanders, 261 Kan. 176, 181, 929 P.2d 153 (1996). If the testator’s intent can be ascertained, neither mies of construction nor extrinsic evidence should be allowed to vary the clear intent expressed on the face of the instrument. See Cline, 258 Kan. at 199.
The analysis as to whether the district court erred in holding that “personal property items” do not include stocks, bonds, CDs, and other personal property, obviously turns on the determination of what “personal property” is. “Personal property” is commonly defined as all property other than real estate, including goods, money, notes, bonds, and stocks. Black’s Law Dictionary 1217 (6th ed. 1990). Black’s further indicates personal property is divisible into corporeal property, which includes tangibles, and incorporeal property which consists of stocks, shares, and patents. A.L.R. states:
“While the term personal property’ in its technical sense includes all forms of property other than lands or interests therein, when the term is used in wills, it is often construed as including, only tangible chattels or personal effects. The ultimate test in determining what passes under a testamentary gift of personal property’ is the intention of the testator, which, when ascertainable, is controlling in every instance, and what passes as personal property under a will depends on the circumstances of the particular case.” 31 A.L.R.5th 499.
The Kansas Court of Appeals has determined the term “belongings” did not include a collection of gold and silver coins and South African gold coins, where the use of the specific words “furniture” and “household effects” rendered it unlikely the testator intended anything to pass under “belongings” other than personal items. Brecklein, 6 Kan. App. 2d at 1010. Further, the Kansas Supreme Court determined “personal effects,” when used in conjunction with clothing, guns, hand tools, cameras, and coins and currency located in testator’s apartment and safe deposit box did not include a $5,000 CD, where it appeared the testator only intended his daughter to receive those items of a personal character due to the context in which the term was used. In re Estate of Reitz, 213 Kan. 534, 535-36, 516 P.2d 909 (1973).
Case law from other states is also instructive on this issue. The Maryland Appeals Court determined a bequest of “ ‘all my personal property, including but not limited to all furniture and fixtures in my residential home, any motor vehicles which I may own and any monies which I may have at the time of my death’ ” was intended to include both tangible and intangible personal property. Hays v. Coe, 88 Md. App. 491, 495-97, 595 A.2d 484 (1991). The court noted, however, if any part of a will restricts or qualifies the general term of personal property, that term must be so restricted and qualified. 88 Md. App. at 496-97.
Based on the foregoing authorities, it appears decedent intended only household items and personal effects to be auctioned off. First, the language of paragraph 24 including the phrase “other personal property items” which directly follows 20 specific bequests of household items indicates only those same type of items were to be sold at the auction. Second, paragraph 24 does not contain any sort of expansive phrase recognized by the Maryland Appeals Court as requiring “personal property” to be interpreted as all property except real estate. Marie did, however, use such expansive terms elsewhere in the will, indicating she could have used them in paragraph 24 if she had so intended. We note that in paragraph 30 Marie bequests government bonds to a charitable society, demonstrating she did not intend those bonds to be included in the term “personal property items,” which would indicate similar items such as stocks and CDs were likewise not “personal property.” Additionally, the residue of Marie’s estate was to go to the Frank and Marie Mildrexter Foundation Trust to be used for the support, welfare, and promotion of several area charitable organizations. She intended to fund the trust with her stocks, CDs, arid other intangibles, which would tend to negate the possibility she wanted to have these items sold at the auction. Finally, as the district court noted in denying Ruby’s petition, stocks, bonds, CDs and the like are not the type of property normally sold at an auction such as that contemplated by paragraph 24.
The district court correctly determined Marie’s will was unambiguous, and it was her expressed intent that only personal property items of the type previously bequeathed in paragraphs 4 through 23 were to be auctioned under paragraph 24, and the balance of real and personal property, unless otherwise specifically bequeathed or devised, was to pass in accordance with the residuary clause of the will.
Ruby also contends the district court erred in refusing to allow her reasonable attorney fees incurred in presenting this issue for consideration. The allowance of attorney fees in probate cases is governed by K.S.A. 59-1504. Although the statute sets forth three ways to recover fees, only one is applicable to the present case. The pertinent language states:
“Any heir at law or beneficiary under a will who, in good faith and for good cause, successfully prosecutes or defends any other action for the benefit of the ultimate recipients of the estate may be allowed his .or her necessary expenses, in tire discretion of the court, including a reasonable attorney’s fee.” K.S.A. 59-1504.
Ruby cites several cases for the proposition that if a petitioner brings a meritorious action to construe a will, attorney fees are allowable. However, while this point of law has been stated in several previous Kansas cases, the clear language of the statute indicates three threshold requirements must be met before attorney fees may be recovered: (I) The party must be successful in his or her action; (2) the action must ultimately benefit the recipients of the estate; and (3) the court must exercise its discretion to allow fees. K.S.A. 59-1504. Further, all of the cases Ruby cites either relied upon earlier versions of the above statute, which did not contain the language applicable to this case, or did not deal with the language applicable to this case. See In re Estate of Robinson, 236 Kan. 431, 435, 690 P.2d 1383 (1984); Reznik v. McKee, Trustee, 216 Kan. 659, 680-81, 534 P.2d 243 (1975); In re Estate of Sowder, 185 Kan. 74, 86, 340 P.2d 907 (1959). Finally, a recent Kansas case emphasized the requirement that a claimant must successfully bring an action which benefits the estate in order to be eligible to receive attorney fees under K.S.A. 59-1504. In re Trusteeship of the Will of Daniels, 247 Kan. 349, 357, 799 P.2d 479 (1990).
Ruby’s petition failed; she was unsuccessful in the proceeding. We conclude the district court did not err in denying her request for attorney fees.
Affirmed.
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Rulon, J.:
Petitioner Willmore L. Bradley appeals from the denial of his K.S.A. 60-1507 action seeking retroactive sentence conversion under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. We affirm.
On August 15, 1978, petitioner entered a plea of guilty to voluntary manslaughter and robbery. The sentencing court invoked the Habitual Criminal Act, K.S.A. 21-4504, due to a prior conviction on April 22, 1975, of burglary and sentenced petitioner to 10 to 40 years on the voluntary manslaughter count and 10 to 40 years on the robbery count. These sentences were ordered to run consecutively, maldng an aggregate sentence of 20 to 80 years.
Eventually, petitioner filed a pro se petition for writ of habeas corpus and a motion for conversion requesting the sentencing court to convert the two consecutive 10 to 40 year terms under the retroactivity provisions of the KSGA. The sentencing court appointed an attorney to represent petitioner and set the motion for hearing.
Ultimately, a hearing was held. Petitioner claimed he had served 16 years and 2 months on his sentence. Previously, petitioner had been released on parole but then returned to prison on a technical parole violation for 3 years. Again, petitioner was paroled and, again, he was returned to prison on a technical violation. Petitioner argues that if his sentences were retroactively converted under the KSGA, he should have served only 90 days for the technical parole violation. Petitioner argues that the failure to retroactively convert his sentences and release him violated his right to equal protection of the law and due process and served as an ex post facto law.
The sentencing court ruled against petitioner, finding Chiles v. State, 254 Kan. 888, 869 P.2d 707, cert. denied 513 U.S. 850 (1994), controlling. The court further found petitioner was to remain under the parole system because he was not subject to conversion under the KSGA.
Petitioner contends the sentencing court should have determined for each offense (1) the proper severity levels, (2) the applicable criminal history, and (3) his eligibility for retroactive sentence conversion. Petitioner further asserts that if he is found to be statutorily ineligible for conversion on one of the offenses, he is still entitled to retroactive conversion of the sentence on the remaining offense because his sentences run consecutively.
The KSGA provides for limited retroactive sentence conversion. Eligibility for retroactive sentence conversion is defined as follows: “The [Kansas Department of Corrections] shall prepare a sentencing guidelines report on all such imprisoned inmates except those who have convictions for crimes which, if committed on or after July 1, 1993, would constitute a severity level 1, 2, 3 or 4 felony on the sentencing guidelines grid for nondrug crimes . . . .” K.S.A. 21-4724(c)(l). A conviction for voluntary manslaughter is a severity level 3, person felony under K.S.A. 21-3403. Under the facts shown, petitioner’s conviction of voluntary manslaughter makes him ineligible for retroactive sentence conversion.
The necessity to determine eligibility for retroactive sentence conversion of any remaining offenses not statutorily ineligible and the criminal history of each offense were addressed in Doolin v. State, 24 Kan. App. 2d 500, 947 P.2d 454 (1997). Doolin was convicted of attempted aggravated robbery, conspiracy to commit aggravated robbery, and aggravated battery in 1992. His sentences on all charges were to run consecutively. The Court of Appeals ruled in Doolin, “since Doolin’s sentence for aggravated battery is not eligible for conversion, his other sentences for attempted aggravated robbery and conspiracy to commit aggravated robbery are also rendered ineligible for conversion.” 24 Kan. App. 2d at 504. Under Doolin, because petitioner’s sentence for manslaughter is not eligible for conversion, his other sentence for robbery is not eligible for conversion.
A determination of petitioner’s criminal history by the sentencing court is not necessary. The Doolin case controls this issue as well. Petitioner is ineligible for a retroactive conversion of his sentence due to the severity level of his offense. A voluntary manslaughter conviction has a presumptive sentence of imprisonment, excluding petitioner from retroactive application of the guidelines to his sentence for this offense. See 24 Kan. App. 2d at 504.
Next, petitioner argues Chiles v. State, 254 Kan. 888, 869 P.2d 707 (1994), which held that the limited retroactivity provision of the KSGA does not violate the Constitution was wrongly decided. In State v. Lunsford, 257 Kan. 508, 511, 894 P.2d 200 (1995), the court stated:
“The defendant’s second argument on appeal is yet another attempt to have this court overrule Chiles v. State [citation omitted]. No argument is presented that was not considered and rejected in Chiles. This issue is without merit and has been rejected by this court so many times it no longer warrants additional citations upholding Chiles.”
This court concurs.
Affirmed.
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Pierron, J.:
This case was submitted to the trial court on stipulated facts. John Hurt, the son of Colleen Parker, was in the Sedgwick County Youth After Care Project for violations of the Kansas Juvenile Offenders Code. He and four of his friends had been drinking alcohol, and without permission they left the facility. The group then stole a car. Hurt was not the driver. They were eventually detected by the police and a high-speed chase ensued. Hurt was killed after the driver lost control of the car and struck a utility pole. Due to the injuries sustained by Hurt, there were medical expenses in the amount of $1,896.05, followed by funeral expenses in amount of $1,881.29.
Parker had car insurance with Mid-Century Insurance Company (Mid-Century), and she is named as the insured under the contract. Parker is Hurt’s sole heir-at-law. Parker sued Mid-Century under the insurance contract on her car, which was not involved in the accident. She sought damages for the death of her son in the amount of $25,000 through the uninsured motorist coverage and personal injury protection benefits for the medical and funeral expenses.
Both parties filed motions for summary judgment based on the stipulated facts. The trial court granted summary judgment in favor of Mid-Century. Parker appeals.
The often-stated rules regarding summary judgment and appellate review of summary judgment are:
“The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).
Under the uninsured motorist provisions of the insurance policy, Mid-Centuiy insured Parker as follows: “We will pay all sums which an insured person is legally entitled to recover as damages from the . . . operator of an uninsured motor vehicle because of bodily injury sustained by the insured person.”
The personal injury protection benefits section of Parker’s insurance contract provides that Mid-Century will pay benefits for medical and funeral expenses “incurred with respect to bodily injury sustained by an eligible injured person caused by an accident arising out of the ownership, operation, maintenance or use of a motor vehicle.” “Eligible injured person” is defined as “the named insured or any relative who sustains bodily injury while occupying, or through direct physical contact with while not occupying, any motor vehicle.”
In determining whether Parker is entitled to recover damages, there are two issues that are already resolved. The parties stipulated that Parker is the named insured person under the insurance contract at issue and that her damages resulted “from the operator of an uninsured motor vehicle” because the vehicle was stolen at the time of injury.
The first issue which we must resolve is whether Parker has compensable damages. Although not herself involved in the accident, Parker argues she suffered damages compensable under the Kansas Wrongful Death Act, K.S.A. 60-1901 et seq. She claims when a person loses a relative and he or she is a legal heir, that person is specifically allowed to recover damages including, but not limited to, those listed in K.S.A. 60-1904. Parker states that all her damages are personal to her pursuant to the wrongful death statutes and are separate from any potential claim of her deceased son’s estate. She claims damages for mental anguish, suffering, bereavement, loss of society, companionship, comfort, or protection, loss of filial care or attention, and reasonable funeral expenses.
The loss of a loved one is clearly devastating, but that does not automatically make the loss compensable. It is undisputed that Hurt would not have been able to assert a claim for damages under Parker’s policy had he survived the accident. K.S.A. 60-1901 explains the general purpose of wrongful death actions in Kansas:
“If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he or she lived, in accordance with the provisions of this article, against the wrongdoer, or his or her personal representative if he or she is deceased.” (Emphasis added.)
The illegality defense is based on the principle that a party who consents to and participates in an illegal act may not recover from other participants for the consequences of that act. The defense will be applied to bar recovery if the evidence shows that the plaintiff freely and voluntarily consented to participate in the illegal act, without duress or coercion. K.S.A. 60-208(c); see Lee v. Nation wide Mutual Insurance Co., 255 Va. 279, 282, 497 S.E.2d 328 (1998).
The uninsured motorist provisions of Parker’s policy specifically exclude Hurt since “no person shall be considered an insured person if the person uses a vehicle without having sufficient reason to believe that the use is with permission of the owner.” He would similarly be excluded from receiving personal injury protection benefits since the contract specifically stated that coverage did not apply to bodily injury sustained by any person if such person is an intentional converter of a motor vehicle at the time such bodily injury is sustained. See Farmers Ins. Co. v. Schiller, 226 Kan. 155, 162, 597 P.2d 238 (1979) (theft of a car is not within the coverage mandated by the uninsured motorist statutes).
The second hurdle for Parker to cross in order to recover uninsured motorist benefits or personal injury protection benefits is that she must have damages due to “bodily injury” of the insured. Her insurance policy defines “bodily injury” as “bodily injury to or sickness, disease or death of any person.” Parker argues her son’s death clearly was the “death of any person” and therefore constituted bodily injury under the policy.
Parker’s “bodily injury” analysis is flawed. Parker claims damages under the Kansas Wrongful Death Act. Consequently, as seen previously, her ability to recover is controlled by the ability of the deceased to recover had he survived. Parker does not challenge the trial court’s conclusion of law that Hurt would have been unable to recover damages, and therefore the ruling is deemed conclusive on appeal. See Greenwood v. Blackjack Cattle Co., 204 Kan. 625, 628, 464 P.2d 281 (1970).
Mid-Century relies on several principles of contract interpretation, including the rule that terms are given their plain, general, and common meaning, Wood River Pipeline Co. v. Willbros Energy Services Co., 241 Kan. 580, Syl. ¶ 3, 738 P.2d 866 (1987), and that reasonable rather than unreasonable contract interpretations are favored. Weiner v. Wilshire Oil Co., 192 Kan. 490, Syl. ¶ 3, 389 P.2d 803 (1964). Applying these principles, the trial court correctly found it to be an unreasonable interpretation to permit Par ker to recover damages when Hurt would have been unable to recover damages had he survived.
In an attempt to determine intent from the four comers of the insurance contract, Mid-Century states the trial court’s ruling is also in line with the definition of “eligible injured person” as stated in the personal injury protection section of the contract. Parker cannot satisfy the definition of eligible injured person since she. did not sustain bodily injury “while occupying, or through direct physical contact with while not occupying, any motor vehicle.” The implication from this definition is that recovery is allowed only when it is the injured person who is involved in the accident.
We note that allowing Parker to recover damages would be contrary to the objectives of uninsured motorist coverage. The purpose of legislation mandating the offer of uninsured and underinsured motorist coverage is to fill the gap inherent in motor vehicle financial responsibility and compulsory insurance legislation. This coverage is intended to provide recompense to innocent persons damaged through the wrongful conduct of motorists who, because they are uninsured or underinsured and not financially responsible, cannot be made to respond in damages.
In our case, the purpose of the illegality provision would be defeated if an heir of one of the parties involved in the car theft would be allowed to collect from the insurer through a wrongful death action for the illegal acts of a co-malefactor. See Auto-Owners Ins. Co. v. Dejohn, 640 So. 2d 158 (Fla. Dist. App. 1994).
The interpretation and legal effect of written documents are matters of law upon which our standard of review is unlimited. Kansas Gas & Electric Co. v. Will Investments, Inc., 261 Kan. 125, Syl. ¶ 1, 928 P.2d 73 (1996). Where the terms of a written instrument are involved, we have the same duty as the trial court to determine its validity. 261 Kan. at 130. Parker’s damages are not compensable under the Kansas wrongful death statutes. Her manipulation of the term bodily injury is unpersuasive and unreasonable. The trial court’s granting of summary judgment in favor of Mid-Century also comports with the principles of uninsured motorist benefits.
The trial court was correct in granting summary judgment to Mid-Century.
Affirmed.
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Pierron:
Deanne J. Buhr appeals her conviction of one count of conspiracy to sell marijuana, a severity level 3 drug felony, in violation of K.S.A. 21-3302 and K.S.A. 1995 Supp. 65-4163; two counts of the sale of marijuana, severity level 3 drug felonies, in violation of K.S.A. 1995 Supp. 65-4163; and one count of contributing to a child’s misconduct, a level 7 person felony, in violation of K.S.A. 21-3612. Buhr argues the juiy instructions were improper. She also contends her conviction for contributing to a child’s misconduct is multiplicitous with her convictions for aiding and abetting the sale of marijuana and conspiracy to sell marijuana. We affirm.
In exchange for a reduction of drug charges, Shawna Plummer agreed to work as a confidential informant for the police. On February 15, 1996, she went to the Sav-A-Trip in Mulvane and asked T.J. if he knew the whereabouts of a certain person (the target of an undercover drug operation). T.J. told Plummer he did not, but he offered to sell her marijuana for $110 an ounce. T.J. is Buhr s 16-year-old son. He lived with Buhr and Buhr s cousin, Treasa Linthicum.
The next day Plummer met T.J. at the Sav-A-Trip to purchase marijuana. A car arrived with Linthicum driving, Buhr in the front passenger seat, and T.J. in the back seat. Plummer asked who to give the money to, and Buhr replied, “Give it to T.J. because I don’t deal drugs no more, I just smoke it.” Plummer gave $110 to T.J. He told Plummer he would page her when she could pick up the marijuana and the three left.
That evening, T.J. paged Plummer and they arranged to meet. T.J. and Linthicum, without Buhr, met Plummer and told her to go to their house. At T.J.’s house, Plummer was met at the front door by T.J. and Linthicum. She left the house with a bag of marijuana.
On February 21, 1996, Plummer called T.J. at his house to purchase some more marijuana. She told T.J. she would call him back to see if he could get the drugs. Plummer went to the Sav-A-Trip where she met Buhr and Linthicum. Plummer told Linthicum she had spoken to T.J. about buying some marijuana and Linthicum replied they could get some since Buhr had to tutor their supplier’s children in Wichita. Although Buhr was around, Plummer was unclear of her location during the conversation. Plummer took the money to T.J.’s house. Linthicum and Buhr were also at the house. T.J. again told Plummer he would page her for the delivery.
After not receiving a page by midnight, Plummer went to T.J.’s house. T.J. gave her a bag of marijuana. Buhr told Plummer to come back to her bedroom to see some kittens. While in the bedroom, Linthicum told Plummer that if the marijuana was not good enough, they would get her better stuff. Plummer said Buhr agreed with Linthicum that they could get her some more marijuana.
Buhr denied making the statement on February 16, 1996, that she did not deal drugs but only smoked them. She also said she was talking to a friend and did not hear the conversation between Plummer and T.J. Buhr also testified she was at school all day on February 21, 1996, and not at the Sav-A-Trip with Linthicum. She said she tutored her friend’s children in Wichita that evening and Linthicum and T.J. were with her. Buhr denied seeing or hearing Plummer when they returned from Wichita, and as far as she knew, Plummer had not come to their house that night.
Buhr was charged with conspiring with Linthicum and T.J. to sell marijuana, contributing to T.J.’s misconduct by encouraging him to sell marijuana, and two counts of the sale of marijuana to Plummer. The jury found Buhr guilty on all counts. The trial court sentenced Buhr to 15 months’ incarceration on each of the charges of the sale of marijuana, 9 months’ incarceration on the conspiracy charge, and 12 months incarceration for contributing to a minor’s misconduct. All sentences were ordered to run concurrently.
Buhr first argues the trial court erred in modifying the elements in the sale of marijuana instructions to include aiding and abetting instead of including a separate aiding and abetting instruction.
“Jury instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case and the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.” State v. Walker, 252 Kan. 279, 295, 895 P.2d 1 (1993).
Jury instructions 5 and 6 are identical except for the date of the offenses. Jury instruction 5 lists the elements of the crime of the sale of marijuana as follows:
“1. That the defendant aided and abetted in the sale or delivery of an hallucinogenic drug known as marijuana.
“2. That the defendant did so intentionally; and
“3. That the defendant did so on or about the 16th day of February, 1996, in Sumner County, Kansas.”
During the instructions conference, Buhr objected to instructions 5 and 6 as including aiding and abetting language instead of simply stating that the defendant sold or delivered the drugs. Buhr argued jury instruction 10, which explained aiding and abetting, was adequate for the State’s theory that she had aided and abetted in the sale of marijuana. The State responded that the instructions were correct because they emphasized that it was unnecessary for the jury to find Buhr actually took the money or delivered the drugs for her to be guilty of the sale of marijuana. The court ruled that the instructions would lead the jury to both the instruction concerning aiding and abetting and the instruction regarding sale. The court found instructions 5 and 6, as stated, clarified the State’s theory that Buhr aided and abetted in the commission of the crime.
Buhr contends the trial court should adhere to the PIK instructions unless a modification is necessary. See State v. Monda, 262 Kan. 58, 71, 936 P.2d 727 (1997). She argues the sentencing court did not follow the PIK instructions when a modification was unnecessary. She claims the error should not be held to be harmless error.
“The use of PIK instructions is not mandatory but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction, or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.” 262 Kan. 58, Syl. ¶ 5.
Buhr does not argue that the jury instructions do not properly and fairly state the law as applied to the facts of her case. Additionally, she does not contest that the jury instructions correctly set forth the State’s theory that she aided and abetted in the crime of the sale of marijuana. The fact that the trial court altered the instructions explaining the elements of the crime of the sale of marijuana to reflect the State’s theory of the case and to assist the jury in examining the State’s case was harmless error, if error at all. If the instructions fairly and properly state the law applicable to the case, “then the instructions do not constitute reversible error although they may be in some small way erroneous.” State v. Aikins, 261 Kan. 346, Syl. ¶ 25, 932 P.2d 408 (1997).
Buhr also argues her conviction for contributing to a child’s misconduct should be reversed because it is multiplicitous with her convictions for aiding and abetting the sale of marijuana and conspiracy to sell marijuana.
Whether convictions are multiplicitous is a question of law. Our standard of review on questions of law is unlimited. Multiplicity is a question of law that may be raised for the first time on appeal if necessary to serve the ends of justice or prevent the denial of fundamental rights. State v. Eastridge, 20 Kan. App. 2d 973, 975, 894 P.2d 243 (1995).
“The Supreme Court has stated that multiplicity is ‘the charging of a single offense in several counts of a complaint or information.’ [Citation omitted.] The primary concern with multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by the double jeopardy clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Constitution Bill of Rights. [Citation omitted.]” 20 Kan. App. 2d at 975.
To determine whether convictions are multiplicitous, we start with State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988), where the court set forth a two-pronged analysis to examine lesser included offenses. The Fike test and its relationship to multiplicitous charges was discussed in State v. Warren, 252 Kan. 169, 175-82, 843 P.2d 224 (1992). The first step is to determine whether all of the statutory elements of the lesser crime are among the statutory elements required to prove the greater crime. If so, then the lesser crime is a lesser included offense of the greater crime. Buhr does not argue multiplicity based on the first prong of Fike.
Under the second prong of Fike, if the factual allegations of the charging document and the evidence required to be adduced at trial to prove these allegations would also necessarily prove the lesser crime, then there is multiplicity. Buhr argues the factual allegations regarding the conspiracy and the sale offenses in the amended information, and the evidence required to prove those charges, necessarily proved the charge of contributing to a child’s misconduct.
Buhr suggests that “[a]iding, abetting, advising, hiring, counseling, or procuring” encompass the same conduct as “encouraging or causing” and was proven by the State’s evidence. She argues that to prove all these elements, the State presented evidence that she directed Plummer to give the money to T.J., that she drove T.J. to Wichita knowing he was going to buy marijuana, and that she agreed with Linthicum that they could obtain other marijuana. Buhr contends the conspiracy conviction encompasses the same conduct as contributing to a child’s misconduct.
The State argues that in order to establish Buhr’s conspiracy and sale of marijuana convictions, it demonstrated that Buhr aided and abetted T.J. in committing the crimes. This was done by showing that Buhr told Plummer to give the money to T.J. on the first sale, and that Buhr indicated control during the second sale by agreeing with Linthicum that if Plummer was not satisfied with the quality of the marijuana they could get more. The State contends it was not required to prove, among other things, that T.J was under 18 years of age.
Buhr’s arguments under the second prong of Fike are not persuasive. In proving the crime of contributing to a child’s misconduct, the State would be required to prove that the child was under the age of 18. This is not an allegation in the amended information under the charges of sale and conspiracy to sell marijuana, nor would this fact necessarily be proven in the State’s case for sale and conspiracy to sell marijuana.
The crimes at issue here concern two different criminal and legislative aims. cf. Eastridge, 20 Kan. App. 2d at 974-78 (multiplicity concerning charges of arson and conspiracy to commit arson). The crime of selling drugs involves crimes against society and public health. Contributing to a child’s misconduct is a crime affecting the child.
The State contends that the essence of the charge of contributing to a child’s misconduct is corrupting the morals of the minor, which is easily distinguishable from the essence of the charge of selling or conspiring to sell marijuana. The point is that Buhr involved a child in the crime. The State correctly argues that if her analysis is accepted, it would make no difference whether Buhr’s co-conspirator/co-defendant was an adult or a child. The legislature set out a separate and independent crime of contributing to a child’s misconduct. By involving her minor son in the crime or making him the primary actor, Buhr has invoked the essence of the crime of contributing to a child’s misconduct in addition to the substantive drug crime.
Although multiplicity was not raised in State v. Johnson, 258 Kan. 61, 899 P.2d 1050 (1995), the case is an example of how a child’s involvement permits a charge of contributing to the misconduct of a child. There, the defendant hired a juvenile hitman to kill another man’s wife. The defendant was convicted of, inter alia, first-degree murder, conspiracy to commit first-degree murder, and contributing to a child’s misconduct. Without any mention of multiplicity, the defendant’s convictions were affirmed on appeal.
Buhr’s claims of multiplicity fail.
Affirmed.
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Rulon, J.:
The State appeals the district court’s order granting defendant Michael Wayne Heath jail time credit and the court’s determination of defendant’s criminal history. We reverse, vacate defendant’s sentence, and remand the cause for resentencing.
On September 7, 1995, defendant entered a plea of guilty in Kansas state court to the unlawful sale of unregistered securities (K.S.A. 17-1255) and unlawful acts in connection with the offer, sale, or purchase of a security (K.S.A. 17-1253). On November 2, 1995, defendant entered a plea of guilty in federal court to a scheme to defraud utilizing the United States mail (18 U.S.C. § 1341 [1994]), conversion of employee benefit assets (18 U.S.C. § 664 [1994]), and money laundering (18 U.S.C. § 1957 [1994]). On April 12, 1996, the federal court sentenced defendant to a prison term of 35 months for mail fraud, concurrent with the other sentences. Defendant surrendered to federal custody on April 22, 1996.
The Kansas district court granted defendant jail time credit for the time he served in the federal penitentiary until he was sentenced in Kansas. The court did not consider defendant’s federal convictions and determined defendant’s criminal history was “I.” On September 26, 1996, the court sentenced defendant to presumptive prison sentences of 18 months for unlawful acts and 12 months for unlawful sale, to run concurrently. The State appeals the court’s order sustaining defendant’s objection to his criminal history and its order granting defendant jail time credit.
CRIMINAL HISTORY
The State contends the district court erred in not considering defendant’s federal convictions as part of his criminal history. See K.S.A. 21-4721(e)(2) (State may appeal criminal history determination). Defendant asserts the court did not err because his federal and state convictions were for acts arising from a continuous course of conduct. Determining a criminal history sentencing issue involves the interpretation of various provisions of the Kansas Sentencing Guidelines Act. When a statute is plain and unambiguous, this court will not speculate about the legislative intent and will not read the statute to add something not readily found there. In re Marriage of Killman, 264 Kan. 33, 43, 955 P.2d 1228 (1998). The interpretation of statutes is a question of law, giving this court an unlimited scope of review. See State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996).
Prior convictions are counted in an offender’s criminal history. “A prior conviction is any conviction . . . which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.” K.S.A. 21-4710(a). K.S.A. 21-4710(c) provides that “[e]xcept as otherwise provided, all convictions . . . shall be counted separately in the offender’s criminal history.” K.S.A. 21-4710(d)(10) and (11) list prior convictions which should not be considered in an offender’s criminal history, such as prior convictions for crimes subsequently found unconstitutional; prior convictions that enhance the crime severity level; prior convictions that elevate the classification from misdemeanor to felony; and prior convictions that are elements of the current crime. None of the above-mentioned excluded convictions apply here.
The state complaint charged defendant with offering for sale or selling unregistered securities (K.S.A. 17-1255) from December 8, 1993, through March 25, 1994, and committing unlawful acts in connection with the offer, sale, or purchase of securities (K.S.A. 17-1253) from April 7,1994, through September 10,1994, both in Johnson County, Kansas. The federal information charged defendant with mail fraud (18 U.S.C. § 1341) on August 16, 1993, conversion of employee benefit assets (18 U.S.C. § 664) in March 1994, and money laundering (18 U.S.C. § 1957) on August 16, 1993, all in the Western District of Missouri.
The federal and state offenses do not involve the same acts; such occurred on different dates, in different states, and involved different circumstances and individuals. Defendant contends his federal convictions should not count as part of his criminal history in the state court sentencing because the state and federal offenses involved a continuing course of conduct. Defendant cites a Washington statute, which specifically states that prior offenses encompassing the same criminal conduct are considered as one offense for criminal history purposes. See Wash. Rev. Code § 9.94A.360(6)(a)(i) (1996). Kansas does not have a similar statutory provision.
Contrary to defendant’s assertions, the record indicates that defendants acts for which he was convicted in federal and state court consisted of different criminal conduct. As charged, the offenses involved different sets of actions on different dates, even .if they were a part of a longstanding, continuous course of conduct. This case does not present the issue of whether a federal conviction would be considered part of an offender’s criminal history for state sentencing for the same conduct. Consequently, defendant’s federal convictions were prior convictions for purposes of determining his criminal history under Kansas statutes and must be considered by the sentencing court.
TAIL TIME CREDIT
Contrary to defendant’s claim, we have jurisdiction to review the sentencing court’s computation of defendant’s jail time credits if such computation constitutes an illegal sentence.
K.S.A. 21-4614 provides that sentence starting dates shall be computed to allow credit for “the time which the defendant has spent incarcerated pending the disposition of the defendant’s case.” A defendant is entitled to jail time credit only for time held in custody solely on account of those charges for which he is currently being sentenced. State v. Taylor, 24 Kan. App. 2d 80, 82-83, 941 P.2d 954 (1997) (citing Campbell v. State, 223 Kan. 528, 530-31, 575 P.2d 524 [1978]). Any factual relationship between charges filed in separate jurisdictions is not relevant to determining whether a defendant should receive jail time credit.
Here, defendant began his federal imprisonment on April 22, 1996. On April 24, 1996, the Kansas district court issued a bench warrant for defendant for his failure to appear for sentencing. The district court based its award of jail time credit on this warrant, stating that “[t]here being a bond forfeited and a warrant issued ... I would suggest that he is being held pursuant to these charges and should get credit.” Clearly, defendant was not entitled to jail time credit for his time in federal prison because he was not held there solely on the state charge. See Taylor, 24 Kan. App. 2d at 81, 83 (defendant not entitled to jail time credit for time spent in other county on separate charges, even though sentencing county put a hold on defendant).
The defendant’s sentence is vacated and the cause is remanded for resentencing consistent with this opinion.
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Schmisseur, J.:
Toureno D. Taylor appeals his jury trial convictions for two counts of aggravated assault and one count of criminal discharge of a firearm at an occupied building. We affirm.
On appeal, Taylor contends the count of criminal discharge of a firearm at an occupied building is multipficitous with the two counts of aggravated assault or is contrary to the legislative intent behind the drive-by shooting statute. He further contends the State failed to produce evidence sufficient to sustain the convictions.
Given the standard of review when the sufficiency of the evidence is challenged in a criminal case, the facts are summarized in the light most favorable to the prosecution. State v. Abel, 261 Kan. 331, 337, 932 P.2d 952 (1997).
Taylor had gone to Hope Taylor s home and demanded to talk to Hope’s sister, Lelee. Taylor had battered Lelee earlier that day, and she refused to talk to him. Hope ordered Taylor to leave her home which he did, but according to Lelee and her friend, Vernon Dupree, Taylor returned a short time later accompanied by another man. Taylor asked Lelee to come out because he had something to show her.
The yard was well lit with a porch light and a spotlight. Lelee looked out the window and warned Dupree to keep the door closed because Taylor and his friend appeared to be carrying ball bats. When she saw Taylor raise what she had assumed to be a ball bat to his shoulder, she told Dupree that Taylor and the other man had guns.
Dupree and Lelee then heard the sound of repeated gunfire. Gunshots were fired through the windows and the walls of the house. Dupree stooped on his knees to avoid injury from the gunfire. Lelee ran into her infant nephew’s bedroom and fell on top of the child to protect him. Debris fell on Lelee as the bullets tore into the walls surrounding the child’s bed.
Someone in the neighborhood called the police. The police dispatcher recorded the call to the police at 1:09 a.m. The police found evidence of shotgun blasts on the side of the house and bullet holes in the house. There were shotgun shell casings and wadding in the front yard and bullet holes in the bedroom walls and ceiling.
At approximately 1:10 a.m, 2 miles away from the shooting, Taylor was stopped for a traffic infraction. The officer arrested Taylor and his passenger. No weapons were found in the search of Taylor and his passenger, or in the inventory search of the car.
Taylor’s testimony differed regarding the events that occurred after Hope ordered him from her house. Taylor testified he left and went to his own apartment for a short time. He said he did not return to Hope’s house. Taylor was upset and decided to go to a friend’s house. There was snow on the streets, and he lost control of the car. He was stopped by a police officer and subsequently arrested.
Taylor contends his conviction for criminal discharge of a firearm at an occupied building is multiplicitous with the aggravated assault convictions. In support, he argues that criminal discharge of a firearm at an occupied building is an included crime of aggravated assault under the facts of this case or, in the alternative, aggravated assault is a lesser included crime of criminal discharge of a firearm at an occupied building.
Taylor did not argue to the trial court that the convictions were multiplicitous. “When constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review. [Citation omitted.]” State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993), see State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 (1984). There are, however, three exceptions to the general rule:
“ ‘(1) Cases where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case;
“ ‘(2) Questions raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and
“ ‘(3) That a judgment of a trial court may be upheld on appeal even though that court may have relied on the wrong ground or assigned a wrong reason for its decision.’ [Citation omitted.]” State v. Bell, 258 Kan. 123, 126, 899 P.2d 1000 (1995) (quoting Pierce v. Board of County Commissioners, 200 Kan. 74, Syl. ¶ 3, 434 P.2d 858 [1967]).
The first two exceptions arguably apply in this case. In Dubish, the Kansas Supreme Court faced an issue of multiplicity raised for the first time on appeal. The court noted the second exception listed above and addressed the issue on the merits, reasoning:
“The issue of multiplicity was considered in State v. Dorsey, 224 Kan. 152, 578 P.2d 261 (1978). The court stated the principal danger raised by a multiplicitous indictment is the possibility that the defendant will receive more than one sentence for a single offense. 224 Kan. at 154-55. The fundamental right of a defendant to a fair trial under the 5th and 14th Amendments to the Constitution of the United States would be violated by a multiplicitous conviction.” 234 Kan. at 718.
Therefore, we will consider the merits of Taylor’s multiplicity argument.
Taylor relies on State v. Warren, 252 Kan. 169, 843 P.2d 224 (1992), to support his argument that where the same wrongful act supports more than one conviction, the convictions are multiplicitous.
Convicting a defendant of multiplicitous crimes is prohibited by K.S.A. 21-3107:
“(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 maybe 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:
(a) A lesser degree of the same crime;
(b) an attempt to commit the crime charged;
(c) an attempt to commit a lesser degree of the crime charged; or
(d) a crime necessarily proved if the crime charged were proved.”
Case law analysis of multiplicity claims reveals several distinct approaches. “A single offense may not be divided into separate parts; generally, a single wrongful act may not furnish the basis for more than one criminal prosecution.” State v. Garnes, 229 Kan. 368, 373, 624 P.2d 448 (1981). “ 'Charges are not multiplicitous if each charge requires proof of a fact not required in proving the other.’ ” State v. Baker, 255 Kan. 680, 683, 877 P.2d 946 (1994) (quoting State v. Grissom, 251 Kan. 851, Syl. ¶ 12, 840 P.2d 1142 [1992]). Offenses are not multiplicitous if they occur at different times and/or in different places. State v. Howard, 243 Kan. 699, 703, 763 P.2d 607 (1988).
A number of multiplicity cases have turned to State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988), which sets out a two-pronged test for determining if there is an included crime under K.S.A. 21-3107(2)(d). Under the first prong, one determines if all of the statutory elements of one crime are included in the other. Even if there is no included crime proven under the first prong, there may still be an included crime under the second prong. Under the second prong, the court reviews the allegations of the complaint and the evidence adduced at trial, and if the evidence which must be adduced at trial for the purpose of proving the crime charged would also necessarily prove another crime, then the latter is an included crime. The Supreme Court has given the second prong of Fike a narrow interpretation by emphasizing the distinction between what the State proves at trial and what the State is required to prove.
In State v. Gibson, 246 Kan. 298, 787 P.2d 1176 (1990), the defendant contended that aggravated sexual battery was a lesser included offense of rape under the facts of the case. The Gibson court stated:
“Defendant recognizes that the statutory elements are different in that aggravated sexual batteiy requires proof of a nonspousal relationship and proof of an intentional application of force with the intent to arouse or satisfy the sexual desires of the offender or another, neither of which are required to prove rape. However, defendant contends that under [the second prong of Fike], the instruction was required because the State did prove an intentional application of force with the intent to arouse upon proving the act of sexual intercourse and also proved a nonspousal relationship.
“Defendant’s reliance on Fike is misplaced. He has confused what the State may have actually proved in its evidence establishing that a rape occurred with what the State was required to prove to establish the crime charged. The mere fact that the evidence adduced in proving the crime charged may also prove some other crime does not make the other crime a lesser included offense under K.S.A. 21-3107(2)(d). Neither the factual allegations of the rape charge nor the evidence the State was required to adduce at trial includes an intent to arouse or a non-spousal relationship. Defendant fails to distinguish between what the State may prove and what the State must prove at trial.” 246 Kan. at 299-300.
The principle explained above in Gibson was important in State v. Mason, 250 Kan. 393, 827 P.2d 748 (1992), where the court faced another multiplicity argument. In Mason, the defendant attacked an elderly woman in her home. He dragged her from the kitchen into the bedroom. He held her to the floor and tried to remove her dress, but she resisted and told him he would never get the dress off. He exposed his penis and attempted to force the woman to perform oral sodomy upon him, but she continued to resist and refused to comply. In the middle of the attack, he suddenly got up and ran out of the house. A few moments later, the woman’s son arrived and found his mother on the floor. The defendant was convicted of aggravated kidnapping, attempted rape, attempted aggravated sodomy, and aggravated sexual battery. He asserted the aggravated sexual battery conviction was multiplicitous with the other three convictions. In analyzing the defendant’s claim, the Mason court quoted State v. Lassley, 218 Kan. 758, 761, 545 P.2d 383 (1976):
“ ‘In State v. Lora, 213 Kan. 184, 515 P.2d 1086 (1976), we stressed that duplicity [multiplicity] does not depend on whether the facts proved at trial are actually used to support the conviction of both offenses; rather, it turns on whether the necessary elements of proof of the one crime are included in the other.’ ” 250 Kan. at 399.
The Mason court then quoted Gibson regarding the distinction under the second prong of Fike between what the State may have proved and what the State was required to prove in establishing one of the crimes. Mason, 250 Kan. at 400-01. Even though the same act of force (holding the woman to the floor) was the act of force used to commit the attempted rape, the attempted sodomy, and the sexual battery, the court concluded the crimes were not multiplicitous. Although arguably the evidence produced at trial to prove the aggravated kidnapping, attempted aggravated sodomy, and attempted rape would incidentally have proven the aggravated sexual battery, the court noted that two elements of the aggravated sexual battery — the victim was not the aggressor’s spouse and the act was done to arouse or satisfy the sexual desires of the offender or another — were not necessary to prove the other three crimes, and the crimes were, therefore, not multiplicitous. 250 Kan. at 401.
In 1992, the Kansas Supreme Court decided Warren, 252 Kan. 169, the case Taylor relies on to support his multiplicity argument, and altered the test for multiplicity. The Warren court held that aggravated robbery and aggravated battery convictions are multiplicitous if the same act of violence provides the basis for each conviction and the same evidence is used to prove both convictions. 252 Kan. at 182. This holding was reaffirmed in State v. Rinck, 256 Kan. 848, 850-51, 888 P.2d 845 (1995).
In Warren, an elderly woman was pushed to the ground and her purse stolen. She sustained serious injuries from the fall. In ad dressing the defendant’s arguments that his convictions for aiding and abetting aggravated battery and aiding and abetting aggravated robbery were multiplicitous, the court discussed K.S.A. 21-3107 and the holding of Fike. 252 Kan. at 176.
Although aggravated robbery and aggravated battery each require proof of an element not present in the other crime, the Warren court noted that the evidence showed that the victim had suffered great bodily harm. The court stated, “[I]t is clear that the necessary elements of proof for aggravated robbery also estáblished the necessary elements of proof for aggravated battery.” 252 Kan. at 180. The court held that aggravated battery can be a lesser included offense of aggravated robbery under the second prong of Fike.
The court then went on to analyze the charges using the traditional multiplicity test, under which charges stemming from a single wrongful act may not be multiplicitous if each of the charges requires proof of a fact not required in proving the other. The court held that although each charge required proof of a fact not required in proving the other, die crimes were nevertheless multiplicitous because the same act of violence provided the basis for each conviction. 252 Kan. at 181-82. The court explained:
“If the charges in this case are not multiplicitous because one charge involves proof of a fact not required in proving the other, then it leads to the conclusion that only crimes involving identical elements can be multiplicitous. This cannot be the case because this court has found crimes involving different elements multiplicitous. See, e.g., State v. Smith, 245 Kan. 381, 392, 781 P.2d 666 (1989) (aggravated battery and attempted first-degree murder multiplicitous); State v. Cathey, 241 Kan. 715, 719-20, 741 P.2d 738 (1987) (same); Games, 229 Kan. at 373-74 (same). Why were these convictions not multiplicitous? Crimes involving different elements, if taken literally, necessarily will require proof of a.fact not required in proving the other.
“We are satisfied, and so hold, that aggravated robbery and aggravated battery are multiplicitous if, as in the case here, the same act of violence provided the basis for each conviction. The defendant’s conviction for aiding and abetting aggravated battery is reversed . . . .” Warren, 252 Kan. at 182.
A similar analysis was employed in Rinck, 256 Kan. 848. In that case, the defendant burglarized the residence of an elderly woman. During the course of the burglary, the defendant beat the woman over the head with a flashlight, causing a gash which required 10 stitches. The court again acknowledged that aggravated battery and aggravated robbery each have an element not required by the other, but the court also noted the importance of the second prong of Fike when analyzing not only claims regarding lesser included crimes but multiplicity claims. The Rinck court reaffirmed the holding of Warren-. “Warren holds that where the same act of violence provides the basis for a conviction for aggravated robbery and a conviction for aggravated battery, the convictions are multiplicitous. [Citation omitted.] [Rinck’s] conviction for aggravated battery is, therefore, reversed.” 256 Kan. at 851.
Warren and Rinck require asking, first, if the same act of violence was involved in each crime and, second, whether the evidence the State used to prove one crime also proved the other. If the answer to both questions is yes, the crimes are multiplicitous. The evidence in the instant case established that it was the same act of violence, discharging a firearm, that supported both the aggravated assault and the criminal discharge of a firearm at an occupied building convictions, and the same evidence was used to support both convictions. Therefore, following Warren and Rinck requires reversal of either the criminal discharge of a firearm at an occupied building conviction or the aggravated assault convictions.
However, in 1997, the test for multiplicity was revisited in State v. Fritz, 261 Kan. 294, 933 P.2d 126 (1997). The Fritz court returned to the traditional analysis developed under Fike, stating: “The test to determine whether the charges in a complaint or information are multiplicitous is whether each offense requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act are not multiplicitous.” 261 Kan. 294, Syl. ¶ 4. The court concluded that a conviction of fraud under the Loan Broker’s Act (K.S.A. 50-1017) was not duplicitous with a conviction of theft by deception (K.S.A. 21-3701[a][2]).
Under Gibson, Mason, and Fritz, convictions based on a single wrongful act are not multiplicitous if each charge requires proof of a fact not required in proving the other. The complaint must be examined to determine whether each offense requires proof of an element not necessary to prove the other offense. If additional proof is required to establish one of the convictions, the convictions are not multiplicitous.
The relevant portions of the complaint in the instant case follow:
“COUNT ONE . . . [OJn or about the 1st day of February, 1996, A.D., one TOURENO D. TAYLOR did then and there unlawfully, intentionally place another, to-wit: LeLee Taylor in reasonable apprehension of immediate bodily harm, done with a deadly weapon, to-wit: firearm. Contrary to K.S.A. 21-3410(a), Aggravated Assault, Severity level 7, Person Felony, Count One.
“COUNT THREE . . . [0]n or about February 1,1996, A.D., in the County of Sedgwick, and State of Kansas, one TOURENO D. TAYLOR did then and there unlawfully, maliciously, intentionally and without authority discharge a firearm at an occupied dwelling, building or structure, to-wit: residence at 1717 McFarland, Wichita, Sedgwick County, Kansas in which there is a human being, to-wit: Terrance L. Carter, Jr., 1 year of age, who was not placed in apprehension of bodily harm. . . . Contrary to K.S.A. 21-4219(b), Criminal Discharge Of A Firearm At An Occupied Building Or Occupied Vehicle, Severity Level 7, Person Felony, Count Three.”
Count two of the complaint reads the same as count one except Vernon Dupree is named as the victim.
It cannot be said that to prove criminal discharge of a firearm at an occupied building, aggravated assault must be proved. Aggravated assault requires proof that the victims were placed in reasonable apprehension of harm, and such proof is not required to prove criminal discharge of a firearm at an occupied building. See K.S.A. 21-3410(a); K.S.A. 1997 Supp. 21-4219(b). Conversely, criminal discharge of a firearm at an occupied building requires the State to prove that the defendant discharged a firearm at an occupied building, while aggravated assault requires no such proof. Clearly, neither aggravated assault nor criminal discharge of a firearm at an occupied building is an included offense of the other, and under the traditional test, the convictions are not multiplicitous.
Fritz represents the most recent authority and reaffirms the traditional test for multiplicity established in Gibson and Mason. Warren and Rinck provide a method that is based on the actual conduct of the defendant and the actual evidence adduced at trial. Although both lines of cases are good law, the Fritz, Gibson, and Mason line of cases yields a result that is consistent with the concept of included offenses: “ ‘One offense is necessarily included in another if it is impossible to commit the greater without also having committed the lesser.’ ” State v. Berberich, 248 Kan. 854, 858, 811 P.2d 1192 (1991). (quoting 3 Wright, Federal Practice and Procedure: Criminal 2d § 515 [1982]). Clearly, as the facts in the instant case illustrate, a defendant can commit criminal discharge of a firearm at an occupied building without committing aggravated assault, and the converse is true. Shooting into an occupied building is extremely high risk behavior, and one who engages in such conduct must be accountable to those who are unaware and, therefore, incapable of protecting themselves from the danger as well as those who are put in fear of bodily harm by the gunfire.
Taylor’s arguments about proof of the child’s state of mind are resolved in State v. Alderson, 260 Kan. 445, 459, 922 P.2d 435 (1997), in which the court held the State is not required to prove the victim was not placed in immediate apprehension of bodily harm as an element of criminal discharge of a firearm at an occupied building.
The authorities of other states enacting statutes in response to the problem of drive-by shootings provide insight into the issue and support the rulings herein.
In People v. Banks, 260 Ill. App. 3d 464, 472, 632 N.E.2d 257 (1994), the Illinois court considered whether the appellant’s three convictions for aggravated discharge of a firearm should stand as separate convictions or be vacated as offenses carved from the same physical act which predicated convictions for aggravated battery with a firearm. The appellant had been found guilty of discharging his weapon into a crowd of unarmed people. It was determined that he had shot at least six bullets from his gun. Three of twelve people were injured from gunshot wounds. The appellant contended that only one physical act was committed against each victim, firing at the victim and hitting the victim in the body with the bullet. Therefore, the appellant argued, only the aggravated battery convictions could stand. The court affirmed both the aggravated battery with a firearm convictions and the aggravated discharge of a weapon convictions, finding that appellant’s acts, which caused injuries to the victims, constituted deeds distinct from his acts of firing in the direction of a crowd of unarmed people.
In State v. Shook, 293 N.C. 315, 320-21, 237 S.E.2d 843 (1977), the North Carolina Supreme Court held that the crimes of discharging a firearm into occupied property and assault with a deadly weapon were entirely separate and distinct offenses, and there was no reason the appellant could not be convicted and sentenced for both. To reach this conclusion, the court compared the elements of the two crimes and found that each offense required proof of an element the other did not.
In People v. Rivera, 216 Mich. App. 648, 650-51, 550 N.W.2d 593 (1996), lv. to appeal denied 454 Mich. 861 (1997), the Michigan court considered whether convictions of assault with intent to commit murder and discharge of a firearm from a vehicle with intent to commit harm violated constitutional protections against double jeopardy. The court stated that the purpose of the double jeopardy protection against multiple punishments for the same offense is to protect the defendant’s interest in not enduring more punishment than was intended by the legislature. To determine legislative intent the court considered whether each statute prohibits conduct violative of a social norm distinct from that protected by the other, the amount of punishment authorized by each statute, whether the statutes are hierarchical or cumulative, and the elements of each offense. The court affirmed the convictions, finding that the social norms protected by the respective statutes differed markedly; the sentences for the two crimes were significantly different; the statutes were not hierarchical, being in separate chapters of the penal code; and the respective statutes involved different elements. Finding no legislative intent to the contrary, the court concluded that convictions for assault and intentional discharge of a firearm did not implicate double jeopardy concerns.
In Rumph v. State of Florida, 615 So. 2d 211 (Fla. Dist. App. 1993), in a summary opinion, the Florida court affirmed the appellant’s convictions for aggravated assault and shooting into an occupied vehicle. The court noted that dual convictions for aggravated assault and shooting into an occupied vehicle are authorized by statute. Fla. Stat. § 775.021(4)(a) (1997) provides that whoever, in the course of one criminal transaction, commits acts which constitute one or more separate criminal offenses shall be sentenced concurrently or consecutively upon conviction of those offenses. Offenses are separate if each offense requires proof of an element that the other does not without regard to the complaint or the proof adduced at trial. The statute provides that the intent of the legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode.
In People v. Garcia, 32 Cal. App. 4th 1756, 39 Cal. Rptr. 2d 73 (1995), the appellant was convicted of shooting a gun into a vehicle occupied by a driver and three passengers. He was also convicted of four assault charges relating to the driver and the three passengers. The trial court stayed the sentences resulting from the assaults on the three passengers; therefore, there was no issue regarding whether those sentences violated the prohibition against multiple sentences for the same act. At issue in Garcia was whether tire appellant’s sentences for one count of assault with a firearm and one count of shooting at an occupied vehicle could be sustained where the driver of a vehicle was the victim of both crimes.
The California penal code proscribes the imposition of more than one punishment for acts that violate multiple criminal statutes. The penal code prohibits multiple sentences, not multiple convictions, where the defendant harbors a single intent and commits a single act that violates multiple statutes. 32 Cal. App. 4th at 1780-81.
The California court noted a “multiple victim” exception to the proscription against multiple punishments. The multiple victim exception provides that even though a defendant entertains a single principal objective during an indivisible course of conduct, he or she may be convicted and punished for each crime of violence committed against each different victim. 32 Cal. App. 4th at 1781. The court held that the sentence for assault on the driver and the sentence for shooting at an occupied vehicle did not violate the prohibition against multiple punishments because, as to the driver, the appellant was sentenced only once (assault) and, as to the passengers in the vehicle, he was sentenced only once (shooting at an occupied vehicle). 32 Cal. App. 4th at 1785.
In Locke v. State, 943 P.2d 1090, 1094-95 (Okla. Crim. 1997), the Oklahoma court considered whether convictions for two counts of using a vehicle to facilitate the intentional discharge of a firearm (drive-by shooting) was double jeopardy. The appellant and approximately nine associates fired guns into a house occupied by seven people. One occupant of the house was killed and two were injured. The court found that although the State listed separate victims under each count of drive-by shooting, the elements necessary to prove the two counts were identical. Because the State did not have to prove different facts for each count, two counts of drive-by shooting were putting the defendant in double jeopardy.
Taylor further argues the Kansas Legislature expressed an intent indicating that the drive-by shooting statute should be applied in cases only where the defendant could not otherwise be charged with a felony. The important question is, therefore, whether the legislature intended to prohibit dual convictions of drive-by shooting and assault. We conclude it did not.
K.S.A. 21-4219 provides in relevant part:
“(b) Except as provided in K.S.A. 21-3411, and amendments thereto, criminal discharge of a firearm at an occupied building or occupied vehicle is the malicious, intentional and unauthorized discharge of a firearm at a dwelling ... in which there is a human being who is not placed in immediate apprehension of bodily harm.”
In State v. Caldwell, 21 Kan. App. 2d 466, 468, 901 P.2d 35, rev. denied 258 Kan. 859 (1995), this court addressed the issue of whether, under K.S.A. 21-4219(b), the State was required to prove that the victim had no apprehension of bodily harm. The defendant in Caldwell discharged a firearm at a house where three people were present. Two persons testified as to immediate apprehension of bodily harm when the shots were fired. The third person in the house was in the shower and unaware of the threat. She did not testify regarding her state of mind. The defendant was convicted of two counts of aggravated assault and one count of criminal discharge of a firearm at an occupied building. On appeal, the defendant argued that the State had failed to prove all the elements of criminal discharge of a firearm at an occupied building because the third victim’s state of mind regarding a lack of apprehension of bodily harm was not proved at trial.
In construing the statute in light of legislative intent, the Caldwell court held that it is clear the legislature intended that a person guilty of discharging a firearm at an occupied building be convicted of a felony whether or not the person or persons inside were put in immediate apprehension of bodily harm. The court went on to say that the legislature intended to prohibit stacking the offenses of aggravated assault and discharging a firearm at an occupied building where the offenses involve the same victim and the same criminal act. 21 Kan. App. 2d at 472.
The issue before this court is whether the legislature intended to prohibit stacking aggravated assault and discharging a firearm at an occupied building where the offenses involve the same criminal act but different victims.
When the Kansas Legislature considered the enactment of the drive-by shooting statute, it received testimony from various interested citizens expressing concern for the quality of life in Kansas neighborhoods where drive-by shootings are a pervasive threat. In addition, Nola Foulston, the Sedgwick County District Attorney, testified about the frustration of the State regarding the limited charging options where individuals have perpetrated drive-by shootings. Foulston outlined the existing criminal statutes and the State’s burden of proof as to each crime. Clearly lacking was a statute that recognized that the malicious and willful act of shooting into a building is alone enough to warrant a felony punishment.
The subcommittee on drive-by shooting acknowledged these concerns in the Report of Subcommittee, House Judiciary Committee on Drive-by Shooting (H.B. 2709), February 25,1992. Portions of the report are excerpted below:
“Presently, some gaps exist in the ability to fully prosecute some drive by shooting situations. We believe our work product fills these gaps without creating additional crimes simply to stack charges against the accused.
“New Section 1 (a) addresses the situation in which a drive-by shooting of an unoccupied dwelling does not rise to the level of a felony because less than $500. of property damages results. Subsection (a) simply makes the act of willful, malicious and unauthorized shooting at an unoccupied dwelling a class E felony, regardless of the amount of damage.
“New Section 1 (b) addresses the situation when aggravated assault and aggravated battery fails to cover the act. Malicious and willful shooting at an occupied building or vehicle, but where the individual is not placed in immediate apprehension of bodily harm, is a class D felony. This is the same class of felony as aggravated assault and will cover the situation where aggravated assault would fail. The willful and malicious shooting at an occupied building or vehicle which results in bodily injury is a class C felony. This is the same class felony as aggravated battery and will cover those situations where the requisite intent to injure, required for battery, cannot be shown.
“The subcommittee believes the creation of these three new felonies addresses the gaps in current law discussed by the conferees supporting H.B. 2709.. . .”
The subcommittee’s objective was to fill the gaps in the law prohibiting the full prosecution of drive-by shootings. Of particular importance, then, is the recognition of where those gaps existed and where they did not.
In a situation where the defendant announced his presence and intent to harm to the occupants of the building prior to discharging gunfire into the building, and all those within the building heard and appreciated the danger, full prosecution of the crime was possible by charging aggravated assault as to each occupant who was not injured and aggravated battery as to each occupant who was injured in the gunfire. Where, however, the defendant discharged a firearm into an occupied building but no occupant was aware of the threat prior to the gunfire, no one was injured, and the property damage was negligible, the law as it existed prior to the enactment of the drive-by shooting statute limited the State to charging misdemeanor criminal damage to property, which was clearly insufficient as a punishment or as a deterrent. The drive-by shooting statute filled this gap in the law by establishing a felony statute prohibiting the wanton and willful act itself without regard to the state of mind of the shooter, the victims, or the amount of property damage.
The situation in the instant case reveals another gap in the law as it existed prior to the enactment of the drive-by shooting statute. In this case, two victims of the drive-by shooting were put in apprehension of bodily harm, and a third victim, due to his infancy, was unaware of the danger. No one suffered physical harm. Taylor argues that this court should interpret the legislature’s intent to prohibit a mixture of aggravated assault and drive-by shooting convictions arising out of a single criminal transaction. Such an interpretation would permit Taylor to escape responsibility for putting the child in danger, due only to the child’s lack of apprehension. If the child had been of an age where he could have appreciated the danger, Taylor would have been answerable for aggravated assault as to the child. This recognition reveals that Taylor’s suggested interpretation perpetuates the gap the legislature intended to fill.
The legislature crafted the drive-by shooting statute to parallel the aggravated assault and aggravated battery statutes in terms of punishment. Therefore, the drive-by shooting charge is clearly an alternative to aggravated assault or aggravated battery charges where the defendant’s acts warrant felony treatment but the facts are not susceptible to the proof required by those statutes. Because the drive-by shooting charge is an alternative, rather than an additional charge, the defendant is not prejudiced by the State’s election to pursue the drive-by shooting charge. Furthermore, permitting the mixture of drive-by shooting convictions and assault or battery convictions in the appropriate case realizes the legislative intent to avoid stacking the charges against the defendant and completely fills the gaps in the law, allowing for full prosecution of the crime.
The final issue is whether the evidence produced at trial is sufficient to sustain the convictions.
“ ‘When the sufficiency of the 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 factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted].” State v. Claiborne, 262 Kan. 416, 425, 940 P.2d 27 (1997).
Taylor contends that no rational factfinder could have convicted him in light of the fact that the shooting was logged in by the police dispatcher at 1:09 a.m., and he was stopped for a traffic infraction 2 miles away from the shooting at 1:10 a.m.
Although Taylor was picked up 2 miles from the shooting scene at approximately the same time as the shooting was called in to the police dispatcher, it is not impossible that Taylor committed the crime. It is not known how much time lapsed between the shooting and the telephone call to dispatch. The arresting officer testified that the distance between Hope’s house and the place of Taylor’s arrest could be covered in 1 minute if the driver were driving over the speed limit.
Viewing the evidence in the light most favorable to the State, the evidence is clearly sufficient to sustain the conviction.
Affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
The petition for rehearing in this case presents and argues questions, with one exception, that have been heretofore considered and on which conclusions were reached as expressed in the written opinion. The reargument of them was very properly and helpfully made in the light of and in connection with the reasons given and views announced in the opinion. But after full consider ation of the new suggestions and reargument made the court is not convinced of the duty or necessity of making any change in the opinion or the conclusions therein reached.
The one exception noted above is a new matter and different from anything that had been presented in the original briefs. It is with regard to the resentence directed to. be made. The closing paragraph of the opinion was as follows:
“The judgment is affirmed, but the cause is remanded to the district court of Brown county with instructions to resentence the defendant, imposing the penalty in accordance with the law in effect at the time of the commission of the crime.” (p. 35.)
The question is asked whether the resentence should apply to those counts only where the sentence given was wrong because it was made under the new law, while the crime charged was under the old law where the penalty was different from what it now is under the new law, or should the defendant be resentenced as to all the counts at one time? We answer this question by stating that there must be but one sentence. The resentence should cover all the counts, those where there was no mistake as well as those in which a mistake was found. The statute (R. S. 62-1512) and the well-established rule as to the sentence on any or all of the counts running concurrently or consecutively must apply to a single sentence delivered at one time only and covering all the counts on which conviction was had. Whatever concurrent or consecutive features or elements there may be prescribed by the court must all be a part of the one sentence imposed and pronounced by the court on one date only and at one time.
“A sentence is the judgment of the court before which the trial in a criminal case is had, formally declaring to accused the legal consequences of the guilt which he has confessed or of which he has been convicted.” (16 C. J. 1265.)
“In a prosecution on an information. containing a. number of counts, the jury finding the defendant guilty of several of the offenses charged, the court should pronounce a single judgment declaring the full measure of punishment to be imposed for all such offenses.” (In re Beck, 63 Kan. 57, 64 Pac. 971.)
With this explanation as to the matter of resentence, the petition for, a rehearing is denied.
Smith and Sloan, JJ., not sitting.
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The opinion of the court was delivered by
Smith, J.:
This case was in two causes of action. The first was for money had and received; the second was in the nature of an action for an accounting and to impose a trust on land. Judgment was for defendant. Plaintiff appeals.
In her first cause of action appellant alleges that Edwin Taylor, as agent for her, received for a conveyance of an interest plaintiff was claiming in certain property in Wichita $12,000, and that he had only paid her $315.35 of that amount in different payments.
For her second cause of action she alleged that for several months prior to April 18, 1921, she had a partition suit pending in which she was claiming a one-half interest in the property in question and possession thereof and asking for an accounting of rents and profits. She also set out that on April 18, 1921, Taylor represented to her that he had a deal for the real estate, and to get the deal through it would be necessary for her to sign a quitclaim deed and a stipulation for dismissal, with prejudice, and that he represented to her that if she would sign these instruments she would get all that was coming- to her, which would be $12,000 or more. She also alleged the collection of rents by Taylor and his promise to pay her $12,000, and a failure to pay any more than the $315.35 heretofore referred to.
There were two trials of this case in the same division of the district court of Sedgwick county. At the first trial the court sustained a demurrer to the second cause of action, and submitted the case to the jury on the first cause. There was a decided change in the evidence offered by appellant between the first trial and the second. On the completion of the second trial the court remarked about the change in the evidence offered and refused to submit the first cause of action to the jury at all, and submitted certain questions to it in an advisory capacity only as to the second. The jury answered the questions favorably in the most part to the contentions of appellant. When these answers were returned the court stated that they were not satisfactory, set them aside and made findings to its liking and reached a conclusion of law in favor of appellee.
In this appeal appellant contends there was ample evidence to have required the submission of the first cause of action to the jury and that she was entitled to have the second cause submitted to the jury as a matter of right, and that therefore judgment should have been given for appellant on the answers to the questions. We will examine the evidence of appellant. She testified substantially as follows: That in July, 1919, she was plaintiff in a suit in Sedgwick county against F. M. Liston, May Alice Liston and J. H. Elem. The petition was introduced and alleged substantially the lending of money by Mrs. Sipe to Liston and his agreement to pay her half the profits from the sale of a farm. It then alleged that the farm was sold at a large profit and the money invested in the real estate in question in the case at bar. She prayed partition of this real estate and for an accounting of the rents and profits.
She then testified that she signed a motion to dismiss this suit without prejudice at her cost. She testified that in August, 1919, she had a transaction with Charles E. Frank with regard to obtaining $5,000 for the purpose of paying a claim which Elem had against the property in question, and that in September, 1920, she had another transaction with reference to borrowing $6,000 to pay a mortgage on the same property. She then testified that in February, 1921, she filed a suit in district court of Sedgwick county against Edwin Taylor and Julia D. Taylor.
The petition in that case alleged, in substance, that in October, 1918, plaintiff and F. M. Liston entered into an agreement to buy the property in question in this action with money owed Mrs. Sipe by Liston; that Liston would cause the title to be taken in their joint names; that instead Elem, Liston and Taylor contrived to have the title to the property taken in the name of Taylor. The petition alleged that she was given to understand by Taylor and Liston that an undivided one-half of this real estate was held by Taylor in trust for her. The petition alleged that before the deed from Elem to Taylor was placed on record she had filed the suit against Liston and Elem, heretofore referred to in this opinion. The petition alleged that on September 27, 1919, she executed a quitclaim deed to Taylor for the property in question and consented to a dismissal of the suit upon the representation of Taylor that it was necessary to clear up the title and that Taylor would conserve the property and give appellant a deed for it. It also alleged that Taylor had never -conveyed appellant’s share to her and still withheld it.
Appellant testified further that the case was never tried and that she signed a stipulation to dismiss and at the .same time a quitclaim deed to the property in question to T. S. Wilcox. She testified that she did not receive anything of value when she signed this deed for the property. She then testified to a deed under date of December 21, 1920, from Edwin Taylor and wife, conveying the property in question to William Morti for a consideration of $12,000. She also testified to a deed from William Morti and wife to T. S. Wilcox, dated March 12, 1921, for one dollar and other consideration. On cross-examination she testified to some borrowing transaction with Liston and that she dismissed the suit against Liston on promise of her money from Taylor, and filed the suit against Taylor because he refused to pay her. On redirect examination she testified about various deeds that had passed back and forth to the property in question. In answer to questions by the court she testified to losing various sums which he had invested in different pieces of real estate. On being recalled she testified as to the details surrounding her raising $6,000, which she claimed was used to pay a mortgage on the property in question.
The testimony of Mrs. Sipe has been given in detail because it is here that one would expect to find the evidence to sustain the allegation of the first cause of action that Edwin Taylor received $12,000 for the conveyance of the land in question as the agent of Mrs, Sipe. No evidence to sustain any such allegation can be found by the court in the testimony referred to and none has been found in any other part of the record. The court below refused to submit the case to the jury on the first cause of action because there had been no evidence introduced to sustain it. We see no reason to disturb that ruling.
The second cause was in the nature of an action for an accounting. The court below submitted that to the jury in an advisory capacity only. Appellant urges that this was error and that she was entitled to a jury trial as a matter of right. We cannot agree with the appellant in this contention. The action was essentially as disclosed by the petitions filed by her and her sworn testimony, all based on her allegations that she furnished $2,000 as part purchase price of some real estate that was taken in the name of F. M. Liston and that as the result of the various transactions, that is, the sale of this farm, and the investment of the proceeds, she was entitled to an interest in the property in question. In effect, her claim for recovery has been at all times based upon a resulting trust. The action also has some features of an action in accounting. In Brush v. Boyer, 104 Kan. 168, 178 Pac. 445, this court held:
"A suit to establish and enforce a trust in the lands and to compel a conveyance, or in case defendant has placed it out of his power to convey, for relief in the nature of damages, is an equitable action, and defendant is not entitled, as a matter of right, to demand a jury.” (Syl.)
In Akins v. Holmes, 89 Kan. 812, 133 Pac. 849, an action for specific performance was consolidated with a replevin action, which involved about the same facts. The trial court submitted the issues to a jury, which found for the plaintiff, but not being satisfied with its findings set them aside and made findings of fact favorable to the defendant. Judgment was entered upon these facts. It was held that this was not error. In this case the plaintiff had filed three petitions based on the same transaction. Each one of these petitions had told a different story of what happened. She had testified twice in the case at bar, both times in the same division. Each time she told a different story. What looks like a deliberate attempt to change the story occurred between the first and second trials of this action in the court below. When witness Liston, who was not present at the first trial, turned up just before the second trial, a convenient witness was found who testified to an altogether different transaction between Mrs. Sipe and Mr. Taylor than had been testified to at the first trial.
The trial court remarked about this change in the evidence and stated that the jury had evidently not paid sufficient attention to the different actions filed by Mrs. Sipe.
We have concluded that it was proper for the court to submit the second cause of action to the jury in an advisory capacity only, and that it was amply warranted in setting aside the finding of the jury in favor of the plaintiff and making findings of its own in favor of the defendant and rendering judgment thereon.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Arthur Daly against the Gypsy Oil Company, a corporation, to recover damages for negligently destroying the water supply of plaintiff for domestic use and for his live stock. The plaintiff prevailed, and the defendant appeals.
In his petition plaintiff alleged that he owned and operated a farm for general agriculture and live-stock business; that he had thereon two wells, one near his house for domestic use, which was about thirty-one feet deep, and another near his barns and outbuildings about twenty-three feet deep, for the use of his live stock kept on the farm, and that these wells had furnished an unlimited supply of good water for more than forty years prior to the time it was drained and destroyed by the negligence of the defendant. It was alleged that the defendant was engaged in core drilling in the community for the purpose of determining the geology and character of the ground in that section of the country, and with the view of exploring for oil and gas. In August, 1929, defendant drilled the hole on the corner of plaintiff’s farm about 450 feet deep, and when the drilling was finished and the core-drilled hole abandoned, defendant knowingly and negligently failed to fill and plug the core-drilled hole, with the result that the vein of water supplying the .plaintiff was drained and the wells rendered worthless to him. Plaintiff stated at length the nature of the loss occasioned by the exhaustion and ruin of the wells, and asked for damages in the sum of $2,950. In an amendment to the petition, which was permitted, it was alleged that the failure to properly fill and plug the abandoned hole consisted in merely stuffing some rags and cloths in the hole about four feet from the top and then placing dirt upon the top of the rags and leaving the hole below four feet from the surface entirely open and unfilled; that if the abandoned core-drilled hole had been properly plugged and filled from the bottom to the top, the veins of water supplying the plaintiff’s wells would not have been permitted to run down into the unfilled and unplugged hole.
A demurrer of defendant to plaintiff’s petition was overruled, whereupon defendant filed an answer admitting its corporate existence and denying all other averments of the petition. A trial was had with a jury, which resulted in a verdict for plaintiff. Special findings were returned with the verdict to the effect that defendant was negligent in not plugging and filling the core-drilled hole properly, and also that the experience of prudent operators, of which the defendants should have had knowledge, as to the effect of core drills on water wells, would cause a reasonably prudent operator to anticipate that leaving the core-drilled hole as it was left would drain and destroy plaintiff’s wells.
The principal question raised upon this appeal is: Was the evi dence sufficient to support the allegations of negligence and to, justify the verdict rendered? Another is that if there was sufficient evidence of negligence to justify the court in submitting the case, should the jury have allowed the defendant something in mitigation of plaintiff’s damages? And a question is also raised upon the refusal of the court to give an instruction that it is proper for the jury to call to its aid, in arriving at a verdict, the knowledge and experience it possessed in common with the generality of mankind in the matter as to the effect of core-drilled holes on water wells.
As to the sufficiency of the evidence to sustain the verdict, there was considerable testimony tending to support the averments of plaintiff’s petition and the verdict returned. Testimony was produced by the plaintiff to the effect that the hole was drilled by defendant on the corner of his farm, and about 574 feet from his house well, and about 800 feet from his stock well. Previous to the sinking of the core-drilled hole there had been an abundance of good wholesome water in his wells. The hole was drilled and completed in the latter part of August, 1929. The well of a neighbor, Moomaw, was near the wells of the plaintiff and water therein had been found in the same formation as water was found in plaintiff’s wells. Within a few days after the drilling was completed the Moomaw well had been drained dry, and in October plaintiff found both of his wells to be dry. The hole drilled by defendant was four inches in diameter and when finished and abandoned by defendant it was not filled up or plugged except that about four feet from the top of the hole gunny sacks and some old worn clothing had been pushed into the hole, and above this clothing dirt was placed three feet or more up to the surface of the ground. Below this cloth plug there was no filling of the hole and no plugging of the veins of water. After the water was exhausted in plaintiff’s wells and they had become dry the plaintiff with others examined the core-drilled hole, and after removing about three feet of dirt from the surface of the ground they found two gunny sacks and an old shirt and overalls which they removed. They found the hole was open below and the water was standing in the hole up about thirty-eight feet from the surface. The water in the hole appeared to be in motion, that is, slowly circling around the hole. Evidence was produced tending to show that drill holes that were not plugged or. filled had drained and destroyed some wells in that section of the state. Instances were shown of wells being drained dry after the sinking of holes that were not plugged or filled and that after the same holes were filled or plugged, the water in the wells was restored. One witness stated that when a hole was drilled near his well it was not plugged and the water in his well was exhausted or drained out the following day. Three weeks later the. drillers came back and plugged the hole, using cement, cinders and sand, with the result that the supply of water in his well was restored. Other witnesses testified that they had had similar experiences and that core-drilled holes dug near their wells had the effect of draining or destroying them, and that afterwards, when the holes were plugged, the water came back in the wells.
On the other hand, defendant produced a witness who testified that he had been with the company for years, had drilled more than 3,000 such holes and had never heard a complaint that the drilled holes affected the water supply of wells in the vicinity of the drilled holes, except in one instance. He admitted that holes are closed in certain areas by his company, depending upon the formations through which the hole is drilled. He also stated that if salt water was found plugging was done, and if they learned that water wells were being drained, plugging would be necessary, but his experience was that the drilled holes had never exhausted or affected the water wells. There was testimony that other holes had been drilled within-a mile or two from plaintiff’s home, and defendant argues that these might have been the cause of the exhaustion of plaintiff’s wells. These holes, however, had been dug a considerable time in the past and the fact that the plaintiff’s wells had not been affected or injured by them, could be accounted for by intervening wrinkles and ridges in the subsurface strata. There is certainly enough evidence in the record to sustain the conclusion that plaintiff’s wells were injured and practically ruined by the hole drilled by defendant. Was it negligence on the part of defendant to leave the hole unplugged and unfilled? Defendant contends that in view of the fact it had drilled thousands of holes in the same way without draining water wells in the vicinity, that it was not bound to anticipate that the leaving of the hole without plugging or filling would injure plaintiff’s well and its failure could not constitute culpable negligence. The contention is that no one is bound to anticipate something that is not likely to occur, -but the proof in the case is that the things that happened in this instance had occurred before and therefore a reasonably prudent person should have foreseen the result of leav ing the holes without plugging and filling. The evidence was sufficient at least to submit that question of fact to the jury, and it has found that the defendant was negligent in that respect. The fact that defendant drilled the hole in its customary way and did not anticipate that injury would result from its failure to plug and fill the hole, would not necessarily relieve it from the payment of damages for the injury resulting from the omission. In Walmsley v. Telephone Association, 102 Kan. 139, 169 Pac. 197, a question arose as to anticipated results from an act charged to have been negligence, and it was said:
“But the law does not say that if the particular injury arising from the negligence cannot be anticipated a recovery cannot be had. That some damage, some injury, would probably arise from the existing negligence and that it could reasonably have been expected is all that the law requires to justify a recovery. (Citing cases.)” (p. 143.)
The defendant cannot evade liability for its negligence because it had drilled the hole in its customary method and had drilled numerous holes without interfering with or destroying water wells near the drilled hole. In a case where there was a question of a necessity for an inspection of an appliance, and it was contended that such an inspection was not customarily made by railroad companies, it was said:
“The fact that such an inspection may not have been employed by the' company, or that it may not be used among railroad companies, does not prove that the failure to make it is not negligence. As was said by Justice Brewer in Missouri Pac. Ry. Co. v. Haley, 25 Kan. 64, ‘It may often be the duty of courts to pronounce conduct negligent, and grossly so, although sanctioned by the custom of the road and the rules of the company, and forbidden by no statute.’ ” (Railway Co. v. Kingscott, 65 Kan. 131, 135, 69 Pac. 184.)
The case of Hall v. Galey, 126 Kan. 699, 271 Pac. 319, involved some of the questions presented in this case. There damages were sought for the leaving of an abandoned gas well in such a condition that salt water flowed from it and caused the pollution and destruction of a well on plaintiff’s farm. Before the pollution of the well it contained a never-failing supply of good water which had been used by plaintiff for household, stock and irrigation purposes. It was contended there, as here, that the plaintiff’s well might have been injured by salt water from other extinct gas wells in the vicinity. The jury, however, found upon the testimony that plaintiff’s well was polluted by a leakage from the defendant’s gas well into the fresh-water strata of plaintiff’s well. Defendant contended that there was a lack of scientific evidence to show with precision that plaintiff’s water well was ruined by salt water from defendant’s gas. well. It was held that the pollution was shown about as convincingly as could be established in a case of that nature, and the court added:
“Defendants emphasize the want of evidence regarding the geological formation, the nature, trend and direction of the subsurface strata, which would have established with scientific precision the source of the salt water which ruined the well. However, our concern is whether the evidence which plaintiffs did adduce was sufficient to take the case to the jury, and to this it seems imperative to return an affirmative answer. (Gilmore v. Salt Co., 84 Kan. 729, 115 Pac. 541; Helms v. Oil Co., 102 Kan. 164, 169 Pac. 208.)” (p. 702.)
A later case, Martin v. Shell Petroleum Corp., ante, p. 124, 299 Pac. 261, is more closely in point. The action was to recover damages caused by defendant’s polluting the veins of water supplying plaintiff’s well with salt water brought to the surface by defendant in drilling and operating an oil well. Evidence was produced that the water in plaintiff’s well was fresh and good until the oil well near by was drilled, and that within a few days after the drilling of the oil well the water in plaintiff’s well became salty and unfit for use. The topography of the ground was shown and that salt water came from certain levels in the oil well. On the other hand, defendant offered evidence tending to show that the oil well had been drilled, cased, and completed in accordance with what was called the best-known methods of the industry. There was testimony that in oil wells drilled near by salt water had been encountered at various depths. The court recognized that the testimony supporting plaintiff’s claim and the verdict of the jury was not very strong, but that it was sufficient to support the verdict. So here the testimony does not trace the veins of water supplying plaintiff’s well foot by foot to the open, unplugged hole left by the defendant, but the facts developed, direct and circumstantial, fairly tend, we think, to support the theory and claim of plaintiff, and we have no doubt that the evidence on the whole was enough to take the case to the jury and to support the verdict.
There is a further contention that the jury should have allowed defendant something in mitigation of damages. The plaintiff, inexperienced in drilling operations and without necessary equipment, could hardly be expected to hunt for veins and plug them or to dig other wells in order to obtain a supply of water for his home and his stock. An answer to defendant’s objection was given in Hall v. Galey, supra, wherein a like question was raised:
“Error is also assigned on the trial court’s refusal to give an. instruction on the plaintiffs’ duty to mitigate their damage, which defendants suggest could have been done by developing greater use of a spring on the farm, or by digging a new well. The doctrine of an injured party’s duty to mitigate his damages is inapplicable to plaintiffs’ situation. Whatever plaintiffs could do to lessen the damage to their well because of the wrongdoing of defendants was, of course, their duty to do. But to dig a new well — assuming a new well convenient to their farm buildings would not be subject to the same contamination as the old well — would not be a minimizing of the damage or total destruction of the old well; neither would the development of the spring, if indeed it had a never-failing and abundant supply of wholesome water — a fact which was not established. Those and other possible sources of a new and adequate supply of water may exist, but they take nothing from defendants’ liability for their wrongdoing in the case presented by this appeal.” (p. 704.)
Some complaint is made of the refusal of a requested instruction to the effect that the jury could call to their aid, in determining the case, the knowledge and experience they possessed in common with the generality of mankind. The court instructed the jury that:
“You are to'take into consideration all the facts and circumstances shown by the evidence and to use your experience and knowledge of facts that are within the common knowledge of mankind generally.”
It thus appears that the rule of the requested instruction was sufficiently brought to the attention of the jury.
Another requested instruction was not given as framed by defendant which included the emphasizing of the consideration the jury should give to the defendant’s experience as a reasonably prudent operator as to the plugging of the drilled hole, as well as that of other reasonably prudent operators in core drilling. We think the instructions given by the court fairly cover the case and that the omission to stress the defendant’s experience as a reasonably prudent operator, as well as that of other operators, was not error.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to partition land. The land had belonged to John Hullet, who died on May 9, 1929. Plaintiff was his widow, and as such claimed half the land. The principal defendants were children of the decedent by a former wife. They claimed all the land under their father’s will. The widow prevailed, and the devisees appeal.
The story is told by the findings of fact made by the district court. The findings follow:
“1. Plaintiff, Minnie L. Hullet, is the widow of John Hullet, deceased.
“2. John Hullet died, testate, at Protection, Kan., on the 18th day of May, 1929, owning the real estate sought to be partitioned in this action.
“3. Defendants Lester Hullet, John F. Hullet, Mrs. Ethel Butts and Fred Hullet, are surviving sons and daughter of John Hullet, deceased.
“4. Plaintiff and John Hullet, deceased, were first married May 13, 1924; they were first divorced July 28, 1926.
“5. By the divorce decree of July 28, 1926, plaintiff was awarded the residence property in Protection, Kan., and certain personal property.
“6. On August 31, 1926, John Hullet, being at that time unmarried, made his last will and testament, copy of which is attached to defendant’s answer; and same was duly admitted to probate in Comanche county, Kansas, on the 30th day of October, 1929. In said will John Hullet bequeathed his property to his two sons, John F. Hullet and Lester L. Hullet, and to his two daughters, Flaude E. Overstreet and Ethel P. Butts. Flaude E. Overstreet died January 31, 1929, without issue.
“7. Plaintiff elected to take under the law instead of under the will of her deceased husband, John Hullet.
“8. Plaintiff and John Hullet, deceased, were married the second time on February 3, 1927.
“9. On May 6, 1927, plaintiff and John Hullet came together to the office of attorney C. E. Baker, in the courthouse at Coldwater, Kan., and there entered into a property settlement contract, a copy of which accompanies defendants’ answer. Said contract, among other things, provided that plaintiff should forever relinquish her rights of inheritance in and to the property of John Hullet.
“10. On the same day, May 6, 1927, plaintiff filed her petition asking for a divorce from the said John Hullet, and he at that time filed his entry of appearance and advanced the court costs in the case.
“11. The said property settlement contract, divorce petition and entry of appearance were all prepared at the same time by attorney C. E. Baker.
“12. Decree of divorce was entered in said case on July 21, 1927, without further appearance or contest by John Hullet, deceased; and the contract of May 6, 1927, was approved and confirmed by said decree.
“13. Plaintiff and John Hullet were married the third time February 9,1928.
“14. After the third marriage of plaintiff and John Hullet, deceased, they lived together as husband and wife in plaintiff’s residence property in Protection, Kan., except as noted in finding No. 15, until the time of John Hullet’s death on May 18, 1929.
“15. Some time in December, 1928, John Hullet, deceased, rented a room at the Dale hotel, Protection, Kan., kept some of his clothes there, and lived a part of the time at said hotel until in April, 1929; during this same period he lived a part of the time at the home of his son, Fred Hullet, in Protection, Kan., and plaintiff made visits to said home during said time. John Hullet also came back to plaintiff’s residence in Protection, Kan., frequently during said time, and lived there during his last sickness from May 6, 1929, until his death on the 18th of May, 1929.
“16. Plaintiff did not return the real estate nor personal property which she received under the contract of May 6, 1927, and decree of July 21, 1927.”
The contract of May 6, 1927, referred to in finding No. 9, contained the following provisions:
“All real estate now owned and held by said John Hullet is to be and remain his property, with full right to convey same as a single man, free and clear from all claims of said Minnie L. Hullet, either for property settlement, support, or alimony, right of inheritance, and any and all other rights or claims of every nature whatsoever.
“Each party to this contract hereby agrees not to claim any right, title or interest of any kind in the property of the other, real, personal, or mixed, now owned or that may hereafter be acquired; and each party hereby agrees that any will the other shall make shall be binding as though legally consented to in writing before witnesses, and hereby surrenders and gives up the right of inheritance and all rights in the property of the other under the laws of descent and distribution of Kansas or any other state, and every right as husband or wife, of the other party.”
The divorce decree of July 21, 1927, referred to in finding No. 12, contained the following:
“And thereupon, the property settlement contract heretofore entered into between plaintiff and defendant upon May 6, 1927, was offered in evidence, which said contract is of record in the office of the register of deeds of Comanche county, Kansas, in miscellaneous record eight, at page 649, and which said contract the court finds makes a fair and equitable division of property as between plaintiff and defendant; and said contract is approved and confirmed, and each of the parties hereto is ordered and adjudged full ownership and title in the property as agreed in said contract.”
The district court stated the following conclusions of law:
“1. John F. Hullet, Ethel P. Butts, Lester L. Hullet, are the devisees under the will of John Hullet, deceased, and acquired thereunder an undivided one-sixth interest each in the property involved in this action.
“2. The contract of May 6, 1927, was entered into in contemplation of permanent settlement and divorce, and was of no force and effect subsequent to the divorce decree of July 21,1927.
“3. Plaintiff inherits one-half of the property of John Hullet, deceased.”
Plaintiff pleaded that the contract of May 6, 1927, had been rescinded by mutual consent. The court did not so find, the findings which were made did not warrant such an inference, and the allegation of rescission was not sustained by the evidence.
The second conclusion of law was correct. The parties to the contract were husband and wife. They were unable to live together any longer as husband and wife, and contemplated divorce as soon as a decree could be obtained. They were desirous of settling their property interests, and all that followed the words of the contract, “It is therefore agreed,” related to that subject.
The parties did not rest on the contract. It was presented to the court in the divorce action, and the provisions of the contract were carried into the divorce decree. The effect of the decree is described in the opinion in Conway v. Conway, 130 Kan. 848, 288 Pac. 566. The effect on the subject of the contract, property interests, was that by virtue of the adjudication Hullet had full title to and ownership of his property as a single person, and Mrs. Hullet had full title to and ownership of her property as a single person. The contract was merged in the judgment, and had no further function to perform as an instrument affecting property interests.
The first and third conclusions of law were correct. When the parties married the third time their relations were precisely the same as if they married for the first time. No will of Hullet devising more than half of his property to third persons could be effective against Mrs. Hullet as to the excess without her consent. She had not consented to his will, and at his death she inherited half of the land in controversy.
Hullet could dispose of half of his property by will to third persons without his wife’s consent. After the first divorce, and while he was single, he made a will, as any other single man might make a will. Mrs. Hullet did not consent to it, and was not then a person whose consent or lack of consent was of any consequence. After the second marriage her right of inheritance was the same as if no will had been made. The contract of May 6, 1927, made no reference to the will. The contract definitely referred to consent to future wills. This provision was superseded by the second divorce decree, which restored the parties to the status of single persons, and ended necessity for consent. No new will was executed. The third marriage again rendered consent necessary. No consent was given, and at the testator’s death the will still in existence became effective against all heirs except the widow.
The devisees contend the waiver of inheritance contained in the contract was absolute and unconditional. As indicated, the contract was superseded by a judgment which settled property interests and barred right of inheritance. Then the two single persons married, and the same rights came into existence as if they had always pre viously been single. Beyond that the parties were not making an antenuptial contract. They were making an antedivorce contract, and the terms of the contract related to the subject matter of the negotiations. It is a cardinal rule of construction that the court will place itself in the situation of the parties at the time the contract was made, will consider their then status and relations, and will consider the manifest nature and purpose of the agreement. It is idle to contend the contract related to more than separation and divorce, and extended to a possible future remarriage.
The devisees contend the broad terms of the waiver of inheritance include a possible future remarriage, unless the court reads into the contract some such words as “except in case of ‘remarriage.” In order that the contract might include such a contingency it was necessary to insert some such affirmative words as “and this applies in case of future remarriage.”
There are some minor assignments of error. They do not affect the essential soundness of the decision of the district court, and need not be discussed.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Sloan, J.:
This was an action for a declaratory judgment to construe the will of R. W. Ross, deceased, and to determine whether plaintiffs have a merchantable title in fee simple to certain lands described in the petition. The trial court found that the will created a fee-tail estate and that the entail had been barred by the conveyance of the real estate, and rendered judgment accordingly. The defendant appeals.
The last will and testament of R. W. Ross, deceased, was duly and regularly admitted to probate on the 23d day of November, 1916. The portion of the will which pertains to the appellees’ title is as follows:
“Third. I will, devise and bequeath all the rest and residue of my property, whether real, personal or mixed, of which I may die seized, or possessed, to my daughter, Iola Ross, for her use and benefit for the term of her natural life, and it is my desire and bequest that at her death all that remains of my said real and personal property and its rents, issues and increase shall fall to and be owned by whatever child or children may hereafter be born to her in lawful wedlock, and the descendants of said child or children per stirpes; and if my said daughter, Iola Ross, shall die without leaving a child born in lawful wedlock, or the descendants of any such child or children, then it is my wish, desire and bequest that at her death, all that remains of my said real and personal property, its rents, issues and increase, shall fall to and be owned by my brothers, or their heirs, if deceased, to wit: William H. Ross, Thomas I. Ross, and Frank Ross, share and share alike. However, it is my wish, desire and bequest that such rest and residue of my personal property of which I may die seized or possessed, shall be owned and com pletely controlled by my said daughter, Iola, with full power to dispose of the same in any way, except by will, and that my farm, located in Sedgwick county, Kansas, to wit: The northwest quarter of section twenty-four (24), township twenty-seven (27) south and range two east of the 6th P. M., shall only be for her use during her natural life, giving her power over the full rents thereof and "the use thereof only for the term of her natural life, and at her death, it is my wish, desire and bequest that said farm shall fall to and be owned by any child or children born to my said daughter in lawful wedlock and their descendants, they talcing per stirpes, and in case my daughter, Iola Ross, dies without living child bom in lawful wedlock or descendants of any such child, then it is my wish, desire and bequest that said farm shall go to my brothers hereinbefore named, share and share alike, and if the3' or any of them be dead, then to their heirs, they taking per stirpes.
“Fourth. It is my wish and I so will that the child named Everet, heretofore born to my daughter, Iola, or any heirs which he may have shall not inherit or receive any benefit in any way from the property of which I may die seized or possessed, whether real, personal or mixed.”
The appellees, on the theory that the quoted portions of the will created a fee-tail estate in them, conveyed the land in question to Andy Hempenius on April 29, 1929, and he in turn reconveyed to the appellees on April 30, 1929. Did this vest in the appellees a merchantable title to the land?
An estate tail has been defined by this court as “a freehold estate in which there is a fixed line of inheritable succession limited to the issue of the body of the grantee or devisee, and in which the regular and general succession of statutory heirs at law is cut off.” (Gardner v. Anderson, Trustee, 116 Kan. 431, syl. ¶ 3, 227 Pac. 743.)
The will as it relates to the land in question is as follows:
“I will, devise and bequeath ... to my daughter, Iola Ross, . . . my farm, . . . shall only be for her use during her natural life, giving her power over the full rents thereof and the use thereof only for the term of her natural life, and at her death, it is my wish, desire and bequest that said farm shall fall to and be owned by any child or children bom to my said daughter in lawful wedlock and their descendants. ... In case my daughter, Iola Ross, dies without living child bom in lawful wedlock or descendants of any such child, then it is my wish, desire and bequest that said farm shall go to my brothers . .
Is this language in the will sufficient to create an estate tail as defined by this court?
The essential and distinguishing earmarks which denote the creation of an estate tail are an interference with and curtailment of the statutory rules pertaining to the descent and distribution of real estate and a limitation of the right of inheritance to the issue of the body of the grantee or devisee. This court has held that the following language is sufficient to create an estate tail:
“ T will and bequeath to my daughter, . . . and to .the heirs of her body.’ ” (Ewing v. Nesbitt, 88 Kan. 708, 129 Pac. 1131.)
“ ‘Clarinda E. Smith & to The children either now or hereafter begotten of Josiah Smith and said Clarinda E. Smith.’” (Wiggins v. Powell, 96 Kan. 478, 152 Pac. 765.)
“ ‘To my daughter, Georgia Gardner, the remainder of my property, both personal and real, for the length of her lifetime only. My direct intention being that she shall have the income only from said property.
“ ‘Should my daughter, Georgia Gardner, marry and have issue, then I direct that at her death my property shall descend to them equally, share and share alike. In the event of no issue, then at her death, all my property shall revert to the Gardner estate.’ ” (Gardner v. Anderson, Trustee, 114 Kan. 778, 779, 227 Pac. 743.)
“ ‘To my adopted son, Joseph Pedder, ... to be used by my said adopted son, Joseph Pedder, for and during his natural life, and after his death I give, devise and bequeath said real estate to his children, of his own blood, born in lawful wedlock.
“‘Should my adopted son, Joseph Pedder, die without children of his own blood born in lawful wedlock, then I give and devise said real estate to my great-nephew . . .’ ” (Allen v. Pedder, 119 Kan. 773, 241 Pac. 696.)
It is first contended by the appellant that the language contained in'the will creates a life estate in Iola Ross, with remainder in her children. It is true that the language contained in the will, “shall only be for her use during her natural life, giving her power over the full rents thereof only for the term of her natural life,” is language usually found in the creation of a life estate. There is, however, no limitation on the power of alienation as in the case of Brown v. Boone, 129 Kan. 786, 284 Pac. 436. Language, however, which would ordinarily create a life estate, if followed by characteristic words of procreation, may create an estate tail. The phraseology used in the will under consideration is not more indicative of a life estate than the language used in the will interpreted by this court to create an estate tail in Allen v. Pedder, supra. We hold, therefore, that the words ordinarily found in the creation of a life estate construed with the entire provisions of the will do not destroy the estate tail.
It is next urged that the term “any child or children born to my said daughter in lawful wedlock and their descendants” are words of purchase and not of limitation. The word “children,” while peculiarly a word of purchase, may sometimes be a word of limita tion. In this instance it is a word of limitation. The child or children must be born to the daughter. .This distinguishes them from adopted children and is equivalent to “issue,” “children of the blood,” or “children of the body.” (Allen v. Tedder, supra.) The will contains the further limitation that the children must be born in lawful wedlock. It is quite clear, therefore, that the language used are words of procreation and of limitation sufficient to create an estate tail.
It is next argued by the appellant that the will provided for a definite instead of an indefinite failure of issue. If the limitation over is upon a definite failure of issue, an estate tail is not created. (Berthoud v. McCune, 130 Kan. 634, 287 Pac. 904.) The will is, “in case my daughter, Iola Ross, dies without living child born’in lawful wedlock or descendants of any such child, then it is my wish . . .” The question of what constitutes a definite failure of issue was before this court in Berthoud v. McCune, supra, and in that case the court held:
“A testator devised certain real estate to his granddaughter to be held for her sole use during her natural life and then to go in fee simple to the issue of her body living at the time of her death, and if she died leaving no living issue of her body, then to go in fee simple to such half brothers and half sisters as may be living at the time of her death, but if she. died leaving no half brothers or half sisters, the property should go to the children of the testator. The granddaughter claimed that the will gave her an estate tail in the property. Held, that as the limitation over is upon a definite failure of issue, that is upon the death of the granddaughter, an estate tail was not created.” (Syl. HI.)
It was again before this court in the case of Burnworth v. Fellerman, 131 Kan. 186, 289 Pac. 433, in which the court held that the limitation over was upon a definite and not an indefinite failure of issue and consequently did not create an estate tail.
Where the grantor has selected a line of inheritable succession for his property it must continue so long as posterity endures in a regular order and course of descent. He may, of course, provide for the disposition of the property on an indefinite failure of issue, but if this is attempted on a definite failure, such as at the time of the death of the devisee named or other fixed time, the estate tail fails. In Burnworth v. Fellerman, supra, the provision of the will was:
“ ‘Provided, That if said Nathana Corbin, die without any child or children of her body surviving her, and without any grandchild or children being the child or children of a deceased child of the body of said Nathana Corbin, then and in that event said above-described land, after the death of said Ida. Corbin and Nathana Corbin, shall be and become the absolute property of the children of my brother, B. B. Corbin.’ ” (Syl.)
It was held that the limitation over was upon a definite failure of issue and therefore not an estate tail.
The will under consideration is “in case my daughter, Iola Ross, dies without living child born in lawful wedlock or descendants of any such child.” This is equivalent to saying “in case my daughter dies without issue,” which would be the end of the line of inheritable succession established by the will and an indefinite failure of issue.
The will in question creates an estate tail and a conveyance of the property defeats the entailment, consequently the appellees are the holders of a merchantable title to the real estate in question and the judgment of the court below is affirmed.
Harvey, J., dissenting.
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Per Curiam:
Counsel for appellees direct our attention to a matter presented by a cross appeal which was not considered with the main case.
The judgment of the district court was that Mary Yasbec should recover the sum of $1,019.12, and her three children, Josephine, John and Angelia, the sums of $276.92, $724.84 and $1,019.12, respectively. What the district court’s judgment did not make clear is that these sums should bear interest at the statutory rate of 6 per cent from the date of the arbitrator’s award, September 24,1926, until the rendition of the judgment in the district court, April 11,1930. Such allowances of interest should have been clearly specified in the judgment. The proper computations to that effect should yet be made (Farmers State Bank v. Crow, 126 Kan. 395, 404, 267 Pac. 1100), and the district court is directed to modify its judgment accordingly.
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment overruling defendants’ applications for permission to withdraw their pleas of guilty to a charge of grand larceny.
The salient facts were these: The Eagle-Picher Lead Company operated a zinc mine in Cherokee county. Defendant Beasley was its superintendent and defendant Chestnutt was its mill foreman. These two defendants conceived a plan to steal a few loads of zinc ore from their employer. They hired one Campbell to haul away and sell the stolen ore, instructing him to come to their employer’s mine after working hours. He did so, and repeated thefts of ore were thus made intermittently for several months. Campbell delivered the stolen ore to a dealer named Moore, who paid for it by checks, some of which were drawn in favor of “F. F. Chestnutt, agent,” and some in the name of “C. & B. Mining Company.” Defendants received and cashed these checks, and after paying Campbell for the hauling they divided and pocketed the proceeds.
Eventually Campbell began to do some thieving of ore on his own account, which culminated in prosecutions for grand larceny against all three of these persons. Beasley and Chestnutt were bound over to the district court on two counts — one for the theft of a load of ore valued at $319.66 on November 30, 1929, and another for the theft of a similar load valued at $234 on December 7, 1929.
In the prosecution of Campbell defendant Chestnutt was used as a witness and he frankly told of these systematic larcenies and particularly of the theft of two loads on the evening of December 6, 1929. On that night Beasley and Chestnutt wanted Campbell to return for a third load; Campbell said he could not do so; but some hours later (apparently after midnight) he did return and stole another load of ore on his own account. Defendant Beasley’s testimony was to the same general effect as that of Chestnutt.
While the trial of Campbell was progressing negotiations were opened by attorneys for Beasley and Chestnutt with the county attorney to have them plead guilty to one count upon condition that the other count against them should be dismissed. The county attorney agreed. One of the negotiators raised the question as to which count they were to plead guilty. Another said it did not make any difference; and the county attorney said, “We will dismiss the first count and you can plead guilty to the second.” This arrangement was then presented to the court, defendants being represented by well-known and experienced lawyers; and the court being fully advised, received defendants’ pleas of guilty.
Later counsel for defendants obtained a written stipulation signed by the county attorney (who has since retired) reciting that he did not have any evidence to prove that defendants had committed the theft of the particular load of ore on December 7, 1929, which was the subject matter of the charge in the second count of the information. On the strength of that stipulation and admission this application to withdraw the pleas of guilty was based. The trial court’s adverse ruling on that application is the basis of this appeal.
Counsel for defendants argue that the stipulation shows clearly that they were laboring under a misapprehension of the facts when they entered their pleas of guilty. This court is unable to discern the faintest shadow of a misapprehension. The fact that defendants did not actually participate in the theft of the particular load of ore which Campbell hauled away sometime after midnight, December 7, was of no importance. Defendants confessedly stole two loads of ore before midnight — the difference in time being no more than a matter of a very few hours. Confessedly they participated in about seventeen such felonious larcenies within a year of the time when these prosecutions were instituted. It was of no consequence whether defendants pleaded guilty to count one or to count two; but the court did offer to let them withdraw their pleas of guilty on count two if they were ready to plead guilty to count one. But no; defendants were not prepared to do anything of that sort. They had gotten rid of count one by dickering with the county attorney to plead guilty to count two; and then expected to get off scot-free of the penal consequences of all their larcenies on the strength of the county attorney’s avowal that he had no evidence to prove that they had a hand in the theft of the particular load of ore specified in count two.
There is no absolute right to withdraw a plea of guilty in this jurisdiction. An application to that effect is addressed to the sound discretion of the trial court. (State v. Yates, 52 Kan. 566, 25 Pac. 209; State v. Garrett, 78 Kan. 882, 98 Pac. 219.) A bare statement of the facts of this case is sufficient to demonstrate that there was no abuse of discretion in its refusal under the circumstances just outlined. It would have stretched the limits of judicial discretion if defendants’ applications had been granted. Space may appropriately be taken here to reproduce .part of the trial court’s opinion in denying the defendants’ motion to withdraw their pleas of guilty.
“By the Court: [Hamilton, district judge.] I realize that it is within the discretion of the court as to whether or not permission is granted these gentlemen to withdraw their pleas of guilty. There would be an abuse of discretion either way very easily.
“I find a long line of decisions where it is hold not to be an abuse of dis eretion when the defendants in criminal cases had not been properly represented, or where they were brought before the court not understanding the law, and entered their plea of guilty.
“The testimony here is of no value to this court, because I well recognize the ability of the defendants’ attorneys, but whether or not they were represented at all would make no difference, I think, in this case, because when I was informed that these two defendants were ready to enter their pleas of guilty, I sent the jury out, which was trying the Campbell case, and these men were then brought before the court. The defendants, before that time and on the first day of court, when arraigned, waived the reading of the information and entered pleas of not guilty. Therefore it was not necessary to arraign them. Ordinarily, when men are represented so ably I would not have taken the trouble to do what I did in this case. I didn’t anticipate, of course, that they would want to withdraw their plea of guilty; it was for another reason that I told them the things I did tell them, and that reason was that I did not want them to enter a plea of guilty thinking they might receive some clemency from this court. But I did ask them if they knew the penalty prescribed for the crime to which they were pleading guilty; I asked them if they knew they were pleading guilty to the larceny of ore from this particular mine on this particular date; I asked them if they understood that if they entered pleas of guilty, they would expect no clemency of this court, and they answered in the affirmative. Whether or not they were represented by attorneys, I think that was sufficient.
“There are cases, of course, and there are a number of decisions covering them, where it would not be abuse of discretion to set aside pleas of guilty. For instance, where a man is guilty of the larceny of a watch on a certain date and that is the only crime he had committed, and the county attorney had in mind some other larceny of some other property or money, and not having in mind the real larceny of which the defendant is guilty, and a plea should be taken under those circumstances, then it might be proper to set it aside. In this case, however, they entered their pleas of guilty and took the witness stand and testified to a series of crimes extending over a year or possibly two years. These men could have been tried and convicted, in my opinion, under this present information. If that is true, then they cannot now expect the court to allow their application to withdraw their pleas of guilty. This application, therefore, is denied.”
See, also, 8 R. C. L. 111-112; Anno., Plea of Guilty, Withdrawal, 20 A. L. R. 1445, 1454-1458.
The various arguments urged against the judgment have been duly considered. They are altogether nonpersuasive and warrant no discussion.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to construe a will and to determine certain rights of its beneficiaries appearing here as litigants.
The late L. J. Campbell, of Sumner county, died testate seized of several hundred acres of land upon which he placed a testamentary valuation of $36,000. After making suitable provision for his wife he apportioned his real estate among his children in “shares” of the value of $500 each. Thus the $36,000 worth of land was to be regarded for purposes of division among his children as seventy-two shares worth $500 each.
A description of the lands and the testator’s valuations may be thus abridged:
Campbell Lands in Town 35 S, Range 3 West.
(1) SW%, sec. 11................................................... $16,000
(2) sy. SE14, sec. 11, less 20 acres and plus tract 30.................. 6,000
(3) N% NEÚ, sec. 14, and tract 12, less portion contracted away..... 4,000
(4) Sy2 SE&, sec. 10............................................... 6,000
(5) NV2 NE%, sec. 15.............................................. 4,000
Total ............................................................ $36,000
The will then provides:
“I give, bequeath and devise as follows, that is to say:
To my son, Ernest W. Campbell.................................. 12 shares
To my son, Ralph H. Campbell.................................. 12 shares
To my son, Albert T. Campbell.................................. 8 shares
To my daughter, Mildred [Warnberg]............................ 8 shares
To my son, LaPorte Campbell................................... 8 shares
To my son, Lyman Campbell.................................... 8 shares
To my daughter, Helen Campbell................................ 8 shares
To my son, Charles C. Campbell................................. 8 shares”
The will next gave options to the sons Ernest and Ralph to purchase certain of the lands, indicated in the list as Nos. 1 and 2, at the testator’s valuations, and gave the younger sons successively the same options in the event their older brothers did not elect to exercise those options. The same paragraph provided that the daughters should not receive their shares until they attained the age of twenty-five years. The paragraph concerning the options reads:
“And I do hereby give to my son, Ernest W. Campbell, the option to take said southwest quarter of section eleven at its value of sixteen thousand dollars and to pay to his brothers and sisters their respective shares therein and I do give to my son, Ralph H. Campbell, the option to take said south half of the southeast quarter of section eleven and said tract number thirty at its value of six thousand dollars and to pay to his brothers and sisters their respective shares therein — and in case my sons, Ernest W. Campbell or Ralph H. Campbell, do, not elect to exercise their respective options, then such options may be exercised by any other sons according to priority of age, and in case two or more of my sons in the exercise of such option desire the same tract of land such choice to be settled by lot; and it is my further wish, desire and will that when my daughters, Mildred Warrensburg [Warnberg] and Helen Campbell shall arrive at the age of twenty-five years, then my sons herein named-shall pay to each of them the sum of four thousand dollars for their respective shares in said real property, it being my will that my said daughters shall not receive any portion of said shares of my real property until they arrive at the age of twenty-five years and then to receive said sum of four thousand each.”
Another paragraph throwing some light on the testator’s testamentary purposes provided:
“Out of the net income of the land I direct my executors to use the portion or share of each of my children who may be a minor, for his or her education.”
The will was executed on December 13, 1921. The testator died on February 22, 1929, and his will was probated on February 27, 1929, without controversy.
Neither of the sons, Ernest or Ralph, elected to exercise the specific options conferred upon them by the will or signified any such purpose, nor in the successive order authorized by the testator did any of the younger sons do so, unless the commencement of this action on June 7, 1930, by all six of the sons against their sister Mildred, defendant in this action with her husband, should be so construed.
Plaintiffs’ petition alleged that they were tenants in common of the real estate described in the testator’s will and claimed title thereto; that their sister Mildred and her husband had no interest in the property, but in lieu thereof these plaintiffs—
“Were directed to pay to said Mildred Wamburg the sum of $4,000 when she should attain the age of twenty-five years.”
Plaintiffs also alleged that at various dates they tendered to Mildred the sum of $4,000, which she refused to accept; that she claimed to be the owner of an undivided interest in the real estate devised by her father’s will; and plaintiffs alleged their readiness to pay to her the sum of $4,000. They prayed that their title be quieted against Mildred and her husband.
By way of answer Mildred and her husband admitted various formal matters, including the death of the testator, the probate of the will, and the accuracy of the copy attached to plaintiff’s petition. She alleged that the only heirs of the testator were his widow and herself and her brothers and sister, whose ages were indicated by their births, to wit: Ernest W. Campbell, born May 20, 1893; Albert T. Campbell, born September 12, 1894; Ralph H. Campbell, born February 9,1897; Mildred Warnberg, born February 15, 1899; LaPorte Campbell, born July 18, 1903; Lyman Campbell, born July 11, 1906; Helen E. Campbell, born February 15, 1908; Charles Campbell, born July 29, 1910.
Defendants’ answer denied that plaintiffs were exclusively the owners and tenants in common of the lands described in the will; denied that plaintiffs were directed or obliged to pay Mildred $4,000 in lieu of any interest in the real estate; denied that plaintiffs at the dates mentioned in their petition or at any other time tendered her $4,000.
Defendants’ answer contained many other allegations of no present concern except one, the substance of which was that the will did not specifically fix any time for the exercise of the options by her brothers Ernest and Ralph, nor at what periods the.options conferred on them should pass to their younger brothers successively on the failure of Ernest and Ralph or either of them to exercise those options; that her brothers’ successive rights to exercise the options w^ere ambiguous and inconsistent, and the terms upon which they might be exercised were indefinite and the rights of Mildred and her younger sister were uncertain and equivocal, and furthermore—
“Defendant further alleges that at the time said will was executed the testator in said will valued all of his real estate described therein at the sum of $36,000, and such value at the time of the execution of said will was the fair and reasonable value of said property.
“That upon the death of said testator, and the probate of said will, the plaintiffs . . . did not seek to claim or exercise said option now claimed or any of them until long after the probate of said will and long after they had full knowledge and information of the terms and conditions of said will. That in the meantime, and on or about the --- day of March, 1929, the Gypsy Oil Company, and other oil companies, caused several oil wells to be drilled in the immediate vicinity and neighborhood of the land described in said petition, and such wells were drilled in as producing oil and gas wells on or about the month of March, April and May, 1929, the value of the land described in said petition greatly increased, and that the plaintiffs, although well knowing all of the terms and conditions of said will and probate thereof, failed, neglected and refused to claim that they had any options or to exercise said options while the wells above described were being drilled and before they reached production or paying, sand, and speculated with what they now claim to be their right and option. That the value placed- on said lands by the testator in his will was a fair market value of said lands from an agricultural standpoint, for which purpose said land had always been held and used by testator prior to his death, and that by reason of the discovery of oil and gas in the immediate vicinity of said lands, as above set forth, said lands became and now are of a greatly increased value and said lands are now reasonably worth and of the market value of §150,000, and that by reason of the acts and conduct of the plaintiff as above set forth, they are guilty of laches in exercising, or attempting to exercise said claimed options and rights, and are estopped to now assert them.”
Plaintiffs lodged a demurrer against this answer on the ground that it did not state any defense, and that the will of the testator was not ambiguous or uncertain and was in no need of judicial interpretation.
This demurrer was overruled, and plaintiffs appeal. Their counsel discuss several matters which are of little consequence because of what is admitted by the demurrer- — that neither of the plaintiffs showed any interest in the options conferred upon them by their father’s will, but deferred action thereon until they could determine with some confidence that the devised lands were within a proven area of gas and oil development and therefore woi’th vastly more than they were for agricultural purposes as estimated by the testator when he made his will in 1921 or when he died or when the will was probated in 1929.
The pertinent law on this point is well settled. A person who has an option to purchase land, where no time limit is specified, must exercise it within a reasonable time. (Knipe v. Troika, 92 Kan. 549, 141 Pac. 559; 39 Cyc. 1241-1243.) What is a reasonable time depends on the circumstances of the particular case. (McMurry v. Fletcher, 28 Kan. 337; 36 Cyc. 709, 6 R. C. L. 899.)
The circumstances will invariably require prompt action on the part of an option holder where speculative fluctuations of property values are rife as where those values are likely to be suddenly and radically affected by impending discoveries of gas, oil or other minerals, or by other unusual circumstances not contemplated when the option was granted. The supreme court of the United States has spoken with clarity on this subject. In Taylor v. Longworth et al., 39 U. S. 172, 10 L. Ed. 405, where the suit was to enforce a contract for the sale of some town property in Cincinnati, Mr. Justice Story said:
“And even when time is not thus either expressly or impliedly of the essence of the contract, if the party seeking a specific performance has been guilty of gross laches, ... if there has, in the intermediate period, been a material change of circumstances, affecting the rights, interests, or obligations of the parties; in all such cases courts of equity will refuse to decree any specific performance upon the plain ground that it would be inequitable and unjust.” (p. 174.)
In Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. Ed. 328, where mining property covered by a deed of trust had been bought by a director of the company and operated for his own profit for several years, the company brought suit to avoid the sale. The complainant was nonsuited and appealed. In an opinion affirming the judgment Mr. Justice Miller said:
“The fluctuating character and value of this class of property is remarkably illustrated in the history of the production of mineral oil from wells. Property worth thousands to-day is worth nothing to-morrow; and that which would to-day sell for $1,000 as its fair value, may, by the natural changes of a week or the energy and courage of desperate enterprise, in the same time be made to yield that much every day. The injustice, therefore, is obvious of permitting one holding the right to assert an ownership in such property to voluntarily await the event, and then decide, when the danger which is over has been at the risk of another, to come in and share the profit.
“While a much longer time might be allowed to assert this right in regard to real estate whose value is fixed, on which no outlay is made for improvement and but little change in value, the class of property here considered, subject to the most rapid, frequent and violent fluctuations in the value of anything known as property, requires prompt action in all who hold an option whether they will share its risks or stand clear of them.” (p. 592.)
In 40 C. J. 953 it is said:
“The rule that where the character of the property is such that it is liable to sudden fluctuations of value, time is of the essence of contracts relating thereto is especially applicable in case of mining property; and such property requires, and of all properties perhaps the most requires, the persons interested in it to be vigilant and active in asserting their rights. Hence it is uniformly held that time is of the essence of the contract in the case of an option on mining property, or a contract for the sale thereof, even though there is no express stipulation to that effect. In accordance with this rule the optionee or prospective purchaser must perform his obligations within the time specified, or if no time is specified, within a reasonable time, unless a valid excuse exists for a delay in such performance, or unless there has been a waiver of this requirement.”
Instructive cases where these principles were applied are: Taylor v. Salt Creek Consol. Oil Co., 285 Fed. 532; Stuckrath v. Briggs & Turivas, 329 Ill. 555; Nelson v. Hamra, 127 Okla. 141; Beckett v. Kornegay, 150 Va. 636.
Viewing the allegations of the answer, whose truth is conceded by the demurrer, we have a case where plaintiffs waited for fifteen months while oil and gas explorations were going on in the neighborhood of the Campbell lands before they sought to exercise the options conferred on them by their father’s will. When that exploration for gas and oil had progressed far enough to affect the value of the Campbell lands so greatly as to raise it from $36,000 to $150,000, their fraternal regard for their sisters’ rights in their common heritage completely collapsed. Of course, courts of equity have no monitorial jurisdiction over the conduct of brothers and sisters, but the only justification for their existence is to restrain inequitable demands and to insist upon fair dealing in all matters of justiciable' concern which cannot be adequately dealt with by the ordinary processes of the law.
Several obviously difficult questions of interpretation of the testator’s will are eliminated by the fact that the options individually conferred on Ernest and Ralph were not exercised by them, and not exercised successively by their younger brothers (39 Cyc. 1247). What is perfectly clear is that no option to buy Mildred’s “shares” in the Campbell lands was conferred upon these six plaintiffs which they were privileged to exercise en bloc whenever oil and gas development in that vicinity had progressed far enough to demonstrate that it would be to their advantage to do so. It follows that Mildred’s title and interest in the Campbell lands are precisely the same in quality and potency as the title and interest of her brothers.
The trial court’s judgment was correct, and it is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This appeal involves the interpretation and construction of two wills, particularly with reference to the authorized method of disposing of property as gifts for charitable and religious purposes, whether by conveyance or transfer inter vivos, or by will of the donee.
The action was commenced by the executor of the estate of the donee under the first will asking for an interpretation and instructions as to distribution of the property involved, making legatees and devisees under both wills parties defendant. The trial court held the first will authorized the donee therein to dispose of personal property as gifts for charitable or religious purposes by will, but did not authorize such disposition of real property where the title still stood in the name of the original testator. The defendants entitled to the remainder under the first will appeal.
The following is the pertinent part of the first will which was executed by Greenleaf B. Sutton:
“I give, devise and bequeath to my beloved sister, Nellie M. Robinson, all of the property, real, personal and mixed, of which I die possessed or to which I shall be entitled at the time of my death, to have and to hold the same with all the rents and profits hereon during her lifetime; hereby giving to my said sister, Nellie M. Robinson, full power and authority to sell and dispose of any and all of such property at public or prívate sale and upon terms and conditions which may be deemed suitable to her and to use the proceeds thereof for her support and convenience or for reinvestment or for gifts to charitable or religious purposes; giving to my said sister full power and authority to make deeds and conveyances of any and all of my real estate as full as I might myself, if I were alive.
“After the death of my said sister or upon my death, should I survive her, then I give, devise and bequeath all of my said property or the proceeds of the reinvestment of the same to my beloved nephew and niece, Harry E. Judge and Myra Harvey, and in such shares as shall be designated in writing by my said sister, Nellie M. Robinson. If I should survive my said sister or should she survive me and fail to designate the proportion which my said nephew and niece shall take in my said estate, then I direct that my said nephew and niece shall take of my said estate share and share alike.”
At the time of the death of Mr. Sutton he was in partnership with his sister’s husband, owning a half interest in a large cattle ranch later sold for $40,000; also a half interest in the city residence property where he and his sister and her husband resided. After fully settling the estate of Mr. Sutton, as executor, Mr. Robinson died intestate, his wife being his sole and only heir. And in 1928 Mrs. Robinson died, leaving a will by which she gave for charitable and religious purposes, to organizations of that character, gifts amounting to $7,500, and also a gift of corporate stock valued at $1,000, and bequeathed to the local Methodist church the residence property valued at $2,500 in which the title to an undivided half interest still stands of record in the name of Sutton.
The trial court found there was in the possession of Mrs. Robinson at the time of her death property directly traceable to the Sutton estate, and reinvested in notes and mortgages, amounting to $15,300 besides the half interest in the residence property.
It was the evident intention of Mrs. Robinson in making her will to regard the property she had received from her brother as her own and except for the bequests to her niece and nephew, appellants herein, she apparently undertook to dispose of the property received from her brother’s estate just as she did with her own property. To the niece and nephew named in the Sutton will she gave $10,000 and $3,000 respectively, and also made them and four other relatives residuary legatees. The bequests contained in her will amounted to considerably more than her own property separate and apart from that traceable to the Sutton estate.
There is no appeal from the holding of the trial court as to the real property.
It is not contended that Mrs. Robinson could not, under the provisions of the Sutton will, have used the proceeds of the estate during her lifetime for her support and convenience, even to the extent of completely exhausting them, nor is it contended that she could not have used the entire proceeds of the estate during her lifetime for gifts to charitable or religious purposes.
The sole contention of the appellants in this connection is that Mrs. Robinson was not authorized by the Sutton will to make gifts of his property to charitable or religious purposes by her will. The authority to use the proceeds for such purposes was not limited nor wanting, but the mode of execution may have been limited.
It was held in the case of Sinke v. Muncie, 110 Kan. 345, 203 Pac. 1102, that where the power to dispose of the estate is not limited either by implication or express terms it may be executed either by deed or by will. It is stated in 49 C. J. 1285:
“Where no mode is prescribed, or where the manner of execution is left to the discretion of the-donee, he may execute it in any manner which will legally effectuate the intention of the donor.”
Is the mode of executing the power conferred in the Sutton will limited by either express or implied terms?
It is urged by appellee that the word “dispose” means to do so by will as well as by deed or other transfer, and there is no want for such definitions and strong decisions to that effect, but here the word dispose is used in connection with the word “sell,” and they are followed by the limitation of a public or private sale, which necessarily restricts the word dispose to a public or private sale and does not permit it to be considered in connection with the proceeds of a sale and the making of gifts for charitable or religious purposes. The testator gave his sister “full power and authority to sell and dispose of any and all of such property at public or private sale and upon such terms and conditions which may be deemed suitable to her.” The next clause has a different verb, namely, “to use,” so that we cannot properly regard the word “dispose” as intended to be read in connection with the use of the proceeds of the sale. It would in effect require the elimination of this word from its connection with the word sell and the transferring of it to the next clause so as to couple it with the term “use the proceeds.” This would be a strained construction.
The next clause gives the sister “full power and authority to use the proceeds thereof for her support and convenience or for reinvestment or for gifts to charitable or religious purposes.” To use is “the act of employing anything or applying it to one’s service, . . . conversion to some purpose” (4 Words and Phrases, 2d Ser., 1104), a very decidedly different way of handling the proceeds from that by devise or bequest. The use of the proceeds for gifts was coupled with the use for support and convenience.
The next clause gives the donee full authority to make deeds to any and all his real property, which is sometimes and very properly argued as coming under the rule that where one mode is definitely named it naturally excludes all others. It can at least be said this clause might modify the rule above stated that where no mode of exercising the power conferred is designated it could be done by either. It now stands with one mode definitely approved and thus far silent as to the other.
For further aid in determining the matter we turn to the ex pressed and implied intention of the testator which is, as was said by Chief Justice Marshall and quoted by our Justice Mason in the case of Pearson v. Orcutt, 106 Kan. 610, 616, 189 Pac. 160, that courts should “always look upon the intention of the testator as the polar star to direct them in the construction of wills.” In the first place, it will be observed that the testator gave his sister, Mrs. Robinson, only a life estate with all the rents and profits during her lifetime and with remainder after her death to his niece and nephew. Under these provisions alone there could have been no diminution of the estate, but it would have passed entirely and completely to the niece and nephew after the death of the sister. But the intervening clause we have heretofore been considering, conferring power and authority to sell and dispose of the same at public or private sale and to use the proceeds for support and convenience or for reinvestment or for gifts to charitable or religious purposes, must be considered in connection'with the provision for life estate and remainder, and this provision must have its full force in the composite expression either as modifying or defeating the other. If the use of the proceeds for support and convenience or for gifts to charitable and religious purposes is regarded as the paramount or dominant purpose of the testator, it would have the effect of changing a life estate into a fee or absolute ownership and completely destroying the remainder. We must determine from the entire will and all the surrounding circumstances which was the dominant purpose of the testator.
It was held in Carlyle v. Pee, 125 Kan. 727, 265 Pac. 1113:
“A beneficiary entitled to a life estate under the provisions of a will may not destroy the rights of a remainderman by disposing of the property by gift or devise.” (Sjd. H 2.)
A full and complete use of the proceeds to the extent of exhaustion would be inconsistent with the thought of a remainder. In some cases cited the wills contain such expressions as “all property remaining at her death,” “the remainder if any,” “whatever remains,” “all undisposed property at her death,” which clearly recognize a contemplated use and diminution of the property itself, but here the testator devises and bequeaths to his niece and nephew “all of my said property or the proceeds of the reinvestment of the same,’' which does not in terms contemplate any diminution of the property. It expressly covers his entire property and only recognizes the changed condition thereof by the “reinvestment of the same.”
We cannot escape the conclusion that the dominant purpose of the testator in disposing of his property was to give to his sister a life estate with the remaining estate, and not the remainder of the property, to his niece and nephew, and that the use of the proceeds for her support and convenience and for gifts to charitable or religious purposes was merely incidental thereto. To make the gifts to charitable and religious purposes the dominant purpose of the donor and the life estate and remainder merely incidental thereto is not in harmony with the plain and ordinary use of the words and expressions employed by the testator, nor in line with the usual and general inclination of parties sufficiently interested in relatives to name them in such connection as beneficiaries. Another emphasis placed by the testator upon the importance attached to the remainder is the unusual precaution taken by him to state the relative proportion in which the remainder should go to them in case his sister should fail to designate a proportion.
If the life estate and the remainder are the dominant purposes of the will, which we hold they are, that feature contributes to and materially strengthens the view that the gifts authorized to be made, being only incidental, must be made by the only mode expressed, viz., by deed or transfer inter vivos, which is the only mode that is consistent with preserving the life estate and a remainder.
Several cases are cited placing a construction upon the words “at her death.” The constructions are not especially helpful because the contexts are different, and also because in this case we have the term “after her death,” which may be subject to a slightly modified construction.
Appellee relies strongly upon the decision in the case of Sinke v. Muncie, supra, where it was held that the mode of exercising the power not being limited by the will could be either by will or deed, but there the wife was given a life estate “to have and to hold the same during her natural life and at her death to dispose of all of the remainder of the property among the children and their heirs, as she may deem best,” thus providing for a disposal of the remainder by her at her death. There were two ways in which she could dispose of the remainder at death.
In the case of Mansfield v. Crane, 116 Kan. 2, 225 Pac. 1087, it was held that the wife who had been given a life estate in the property could not dispose of it by will, where it provided “that all of my real estate and such of my personal property as may remain after her death shall be divided equally between” certain relatives.
In the case of Pearson v. Orcutt, supra, the testator devised and bequeathed to his wife all of his property with power to sell and dispose in any way she may desire, followed by this modification: “But I further direct that in case that she shall not have sold or disposed of all of my said property prior to her death, then out of such of my estate as shall remain (one bequest of $50) and the remainder thereof shall be divided among my five children.” It was there held:
. . that the will gave to the widow a life estate coupled with a qualified power of disposition of the fee, and that the power did not extend to the making of such conveyance. [She having executed a deed to a grandson.]” (Syl.)
In the case of Scott v. Gillespie, 103 Kan. 745, 176 Pac. 132, it was held that the will gave to the wife a life estate with power of disposal and remainder to the children, where it devised to her all the residue of his estate to have and enjoy, sell or dispose of in any manner she may see fit, and upon her death all the property she may die seized of shall then be distributed among the children, share and share alike.
In the case of Markham v. Waterman, 105 Kan. 93, 181 Pac. 621, the will was held to give the wife a life estate with power of disposition and remainder in the children, where it made the wife the “real owner” with “complete control,” and after death his executor shall determine the amount and value of all the property and it shall be divided equally between the children.
In the case of Ernst v. Foster, 58 Kan. 438, 49 Pac. 527, it was held that the will gave the wife a life estate with power to dispose of the fee and the property undisposed of at her death to descend to three heirs, where it gave to the wife all the residue of the property, real and personal, to have and to use and to dispose of during her natural life and after her death to be divided equally among three certain heirs.
Many cases are cited by appellants and appellee from other states in support of their contentions, and while they all shed light upon the way and manner of arriving at a proper construction, none of them contain the exact language used in the will in this case nor the arrangement of the several parts, and the surrounding circumstances in most cases are very different.
Two well-considered Massachusetts cases cited and urged respec tively by the appellee and the appellants serve to show how nearly independent each and every such case of will construction must be: The first is Burbank v. Sweeney, 161 Mass. 490, and the second, Ford v. Ticknor, 169 Mass. 276. In the first case the testator gave—
“. . . all his estate to his wife for life with remainder over of portions thereof to nephews and a charity, and the residue he left to his wife ‘to dispose of as she may deem expedient, but in the event that she should make no disposition of the same during her lifetime, I. give the remainder of my estate not disposed of above to my heirs at law.’ Held, that the wife was given a power of disposal thereof by will as well as by deed during her life.” (Syl.)
In the second case, decided three years later, E, a tenant in common with his wife R, gave her by will his entire estate “to hold to her during her lifetime with full power to use and dispose of the' same as she shall deem right and proper,” and after her decease the remainder to his son “to hold to him and his heirs forever.” It was held that the power of disposal in the wife did not extend to a disposal by will. In the opinion the court in commenting on the earlier case, cited by the respondent, compared and contrasted the two cases as follows:
“But in that case the testator, having no children, gave out of the remainder after the life estate legacies to two of his heirs, and left the rest for his wife to dispose of as she might deem expedient, he himself disposing of it only ‘in the event that she should make no disposition of it during her lifetime.’ There the dominant purpose of the clause which was held to give the power of disposal by will was to authorize the wife to dispose of the property, and the testator disposed of it only in the event that she did not. Here the dominant purpose is to give the wife a life estate, with a remainder given by the testator to his son, and the power of disposal is merely incidental to the life estate to make it fully effectual, and so that, if she deems best, her use of it during her life may exhaust the full value of the property. We regard the power in the present case as one only to be exercised during the active enjoyment of the life estate, and in aid of that enjoyment.” (Ford v. Ticknor, supra, 280.)
We conclude that the Sutton will did not authorize Mrs. Robinson to make gifts of the proceeds of his estate by will.
The trial court found that Mrs. Robinson had by her will designated in writing the shares or portions the niece and nephew should take in the Sutton property when she in her will devised and bequeathed to them respectively $10,000 and $3,000, or in other words in the proportion of ten to three. The Sutton will where it gave the niece and nephew the estate in remainder provided that they should take it “in such shares as shall be designated in writing by my said sister,” and further that should she fail to designate the proportion, they shall take share and share alike. This provision plainly authorized the sister to make a designation in writing of the proportionate shares they should take in his estate and we concur in the holding of the trial court that the bequests made to the niece and nephew in Mrs. Robinson’s will constitute a compliance with that authorization, at least to the extent of the bequests, to the niece, Myra Harvey, $10,000, and to the nephew, Harry E. Judge, $3,000. It will be necessary to determine whether that proportion of ten to three shall apply to any amount beyond $13,000, or the undivided one-half interest in the residence property, or whether the sister may be considered as having failed to designate the proportion beyond $13,000 • and in the real estate. We conclude that no designation was made by the sister of proportionate shares as to personal property beyond $13,000, nor as to any real property, and that she having failed to make such designation the shares for such additional amount of personal property, if any, and for the real estate shall be between the niece and nephew, as indicated in the Sutton will, share and share alike.
• We find there was evidence to support the finding of the trial court that the only property in the hands of the executor directly traceable to the Sutton estate or the reinvestment of the same consists of a half interest in two notes of $17,500 and $12,500, and a half interest in the balance due on an $1,800 note shown to be $600, making a total of $30,600, the half of which is $15,300.
There was also evidence to support the finding that the ten shares of stock in the Union Telephone Company belonged to Mrs. Robinson, and that the bank deposits were not traceable to the Sutton estate.
The judgment is reversed in so far as it approved the payment of legacies for charitable and religious purposes out of funds or property coming from the Sutton estate, and is affirmed as to the bequest of the telephone stock and the disposition of the real property, no appeal being taken.as to the latter item.
The judgment is reversed and the cause is remanded with instructions to render judgment in accordance with the views herein expressed.
Johnston, C. J., Btjrch and Hutchison, JJ., dissenting.
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The opinion of the court was delivered by
Dawson, J.:
This was an action by the plaintiff against Dale E. Early to recover the sum of $5,154.18 on a check which he had issued to plaintiff on November 15, 1929, and which was dishonored by the bank on which it was drawn because of insufficient funds.
The action was begun on December 12,1929, and on the following day garnishment process issued to the Continental Oil Company, which answered that it did not then owe Early any money and held no assets belonging to him, but that it did have a business transaction with him to this effect: On July 5, 1929, the garnishee and Early made a contract wherein it was agreed that Early as contractor should drill, case and complete an oil and gas well to the depth of 4,250 feet for the consideration of $4 per foot, unless the garnishee should order drilling operations stopped at a lesser depth. The drilling rig and certain specified equipment were to be supplied by the garnishee and it was likewise to pay for ordinary repairs. Early, the contractor, was to furnish the rest of the equipment for the prosecution of the enterprise.'
On December 20, 1929, the Boucher Oil Company of Oklahoma filed a verified interplea in the action, alleging that the drilling contract which had been effected between the garnishee and Early was in fact made by Early as an officer and representative of the Boucher Oil Company, interpleader, and in its behalf; that Early had no personal interest in the contract; that he had prosecuted the work of drilling the well with the tools and equipment of the Boucher Oil Company; that it had expended large sums of money in the performance of the contract; and that it was entitled to the agreed consideration of $4 per foot for the drilling, totaling $16,812.
On a showing satisfactory to the court and the parties concerned the amount due for the drilling of the well (which was completed on January 5,1930) less the sum garnished in this action was paid over to the Boucher Oil Company; and this litigation proceeded to a determination of the rights of precedence between plaintiff and the interpleader.
Plaintiff’s answer to the interplea traversed all its material allegations which conflicted with the rights asserted by plaintiff concerning its claim to the sum held by the garnishee. Plaintiff set up the written contract between E'arly and the garnishee, which specifically provided that the contract could not be assigned by Early nor the drilling sublet by him without the written consent of the garnishee. No such consent had been given at the time the service of garnishment was made on December 13, 1929.
The cause was tried by the court which made findings of fact, the most significant of which were that no notice of any assignment of the contract by Early to the Boucher Oil Company had been given to the Continental Oil Company prior to the service of garnishment on December 13, 1929; that at no time prior to December 28, 1929, did the garnishee have a right to pay any money due Early to the Boucher Oil Company; that at no time prior to the latter date had there been any assignment of the contract by Early in conformity with its specified terms; and that the plaintiff never had any notice or knowledge that the interpleader claimed an interest in the drilling contract until after the institution of the garnishment proceedings.
On these findings of fact and on conclusions of law deduced therefrom the trial court rendered judgment for plaintiff.
The Boucher Oil Company, interpleader, appeals, its main contention being that the provision in the drilling contract that Early, the contractor, could not assign it without the written consent of the Continental Oil Company was nugatory. It argues that Early was the vice president of the Boucher Oil Company when he made the contract on July 5, 1929, and that he used that company’s tools in performing the contract and that it paid the expenses of the drilling enterprise. As between Early and his company it may be conceded that the latter was entitled to the proceeds of the enterprise. With that matter plaintiff has no concern. But how can it be said that the Bridgeport Machine Company should be required to stand aside for the Boucher Oil Company on account of this unknown relationship between it and Early? If the Boucher Oil Company was in fact a party in interest to the contract of July 5 from its inception, then it was charged with notice of its terms, one of which was that Early could not assign that contract to the inter-pleader or anybody else without the written consent of the other party to the contract. The Boucher Oil Company was quite content to let the contract stand as written, while Early was contracting obligations on the faith that he was the responsible contractor and principal of an important and remunerative enterprise. It would therefore be manifestly unjust to suffer the plaintiff to be maneuvered out of its due by this belated claim of the interpleader.
Appellant cites cases holding that garnishment proceedings only reach the actual property of the debtor in the hands of the garnishee, not that which the debtor had theretofore assigned in good faith to others. That rule of law does not help the appellant. There had been no valid assignment of Early’s claim against the Continental Oil Company when the garnishment process was served. Such assignment could only be made with the written assent of that company. Such assent had neither been given nor asked for. Appellant also invokes a rule that where the agent of an undisclosed principal makes a contract all the advantages of such contract inure to the benefit of his principal. That rule is not an invariable one. Here the drilling contract was made with Early. The Continental Oil Company was willing to let the important enterprise of drilling a 4,250-foot well to him. But it expressly stipulated that the contract was let to him personally — not to anybody else, and was not to be assigned by Early to anybody else without its written consent. Much is made in the brief of a letter purporting to have been written by Early to the Boucher Oil Company on July 6,1929. It stated that he had obtained a drilling contract to drill an oil and gas well, for the Continental Oil Company on a tract of land in Sedgwick county, “which contract was taken by me for the use and benefit of the Boucher Oil Company.” The letter then proceeds—
“Consistent with our agreement [whatever that was], and in view of the fact that I am vice president of Boucher Oil Company, it is my understanding that such contract is a contract of Boucher Oil Company notwithstanding that it was taken in my name, and that all proceeds arising from such contract shall belong to Boucher Oil Company.
“It is further understood and agreed that all cost in the performance of said above-mentioned contract shall be paid by Boucher Oil Company and that Boucher Oil Company shall perform all the conditions thereof agre.ed by me to be performed to the same extent as though Boucher Oil Company were named contractor therein, in my place and stead.
“Very truly yours, D. E. Early.’
It does not appear that the trial court attached much credence to that letter — which is not surprising. The fact that it reminds the company that he is its vice president and advances the legal theory by which the interpleader now seeks to deprive the plaintiff of its advantage by the garnishment proceedings might have weighed against it, if it were otherwise entitled to controlling significance. The letter dictates what is “further understood and agreed” between Early and the Boucher Oil Company, and states that the latter “shall perform all the conditions [of the drilling contract] agreed [to] by me.” Certainly the Continental Oil Company was not bound by that letter, even if its genuineness were beyond question, since its contents were not made known to it until December 20, 1929, by which time the garnishment proceedings had become effective.
Appellant directs our attention to a general rule laid down in 5 C. J. 874, 875, which holds that ordinarily the right of one party to a contract to its performance by the other party may be assigned unless such assignment is forbidden or unauthorized by the terms of the contract itself. This court fails to discern how that rule can give any aid or comfort to the interpleader.
Appellant also invokes the rule announced in some early Kansas cases like B. & M. R. Rld. Co. v. Thompson, 31 Kan. 180, 1 Pac. 622, which held that garnishment proceedings bind only the amount due on the date the garnishment is served and not that which is subsequently earned, even under a prior contract of employment. As we read the record a great deal more than the amount of plaintiff’s claim had been earned prior to the service of the garnishment process. The well was then nearly completed, at which time a total of $16,812 was earned, so the rule invoked does not defeat the garnishment proceedings. Furthermore, the statute, R. S. 61-1222, has been critically reexamined in recent years and the rule announced in the Thompson case, supra, has been liberalized. In Anderson v. Dugger, 130 Kan. 153, 286 Pac. 546, it was said:
“Under the provisions of R. S. -61-1222, supra, the garnishee is obliged to appear before the justice and answer concerning the property in his possession or under his control, and ‘the amount owing by him to the judgment debtor, whether due or not.’ Under this provision of- the statute unmatured and coritingent liabilities are properly subject to such garnishment proceedings. (Bank v. Dondelinger, 103 Kan. 444, 175 Pac. 109; Winterscheidt v. Wilson, 110 Kan. 649, 205 Pac. 600, followed.)” (Syl. ¶ 2.)
The other objections to the judgment have been carefully considered, but no further error is discerned which would justify discussion.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
Nominally the proceeding was one by a workman to obtain review of an award of compensation. The commissioner of compensation held he had no authority to entertain the petition for review. The district court held otherwise, and the employer and the insurance carrier appeal.
Mishler was injured on November 17, 1927, and the grain company paid him compensation for eighteen weeks. Payment of compensation was then discontinued, and on April 12, 1928, Mishler filed a claim for compensation. The claim was heard before an examiner, who found there was no objective or subjective symptom disclosed by the evidence entitling the claimant to further compensation, and if plaintiff had any disability, it was not caused by the accidental injury of November 17, 1927. Therefore an award of compensation was denied. The findings and decision of the examiner were approved by the compensation commissioner on June 20, 1928. Mishler appealed to the district court. A transcript of the testimony adduced before the examiner was considered, and on April 18, 1929, the district court affirmed the decision of the commissioner of compensation. The judgment of the district court was fully sustained by the evidence. Mishler did not appeal.
In August, 1929, Mishler filed what was termed “application and petition for review and modification of award.” The grounds of the application were that the award was inadequate and the disability of.the claimant had increased. The commissioner of compensation denied the application on the following grounds:
“The application of the claimant for a review of the award made on August 5, 1929, must be denied, since the commissioner-on June 19, 1928, found that if any disability existed to the claimant it did not arise out of and in the course of claimant’s employment, and for the further reason that no award was made therein, and that the claimant appealed from the decision of the commissioner to the district court of Crawford county, and the award of the commissioner was sustained.
“There is no provision in the workmen’s compensation act for the reviewing of an award under the above stated facts.”
The statute reads as follows:
“Every finding or award of compensation shall be in writing signed and acknowledged by the arbitrator or by the secretary of the committee herein-before referred to, or commission, and shall specify the amount due and unpaid by the employer to the workman up to the date of the award, if any, and the amount of the payments thereafter to be paid by the employer to the workman, if any, and the' length of time such payment shall continue. No award shall be or provide for payment of compensation in a lump sum, except as to such portion of the compensation as shall be found to be due and unpaid at the time of the award, and credit shall be given to the employer in such award for any amount or amounts paid by him to the employee as compensation prior to the date of the award.” (R. S. Supp. 1930, 44-525.)
“Any award of compensation may be modified by subsequent written agreement of the parties, . . .” (R. S. Supp. 1930, 44-526.)
“At the time of making any final payment of compensation, the employer shall be entitled to a final receipt for compensation, executed and acknowledged or verified by the workman, which final receipt may be in form a release of liability under this act.” (R. S. Supp. 1930, 44-527.)
“At any time before but not after the final payment has been made under or pursuant to any award or modification thereof agreed upon by the parties, it may be reviewed by the commission upon good cause shown upon the application of either party, . . . and if it shall find that the award . . . is excessive or inadequate, or that the incapacity or disability of the workman has increased or diminished, the commission may modify such award upon such terms as may be just by increasing or diminishing the compensation subject to the limitations hereinbefore provided in this act; . . . Provided, That the provisions of this section shall not apply to an award of compensation provided for in the schedule of specific injuries in section 10 of this act.” (R. S. Supp. 1930, 44-528.)
It is perfectly plain from these provisions of the statute that the review section relates to an award of compensation, not to a refusal to award compensation; to an award specifying amount of payments to be made and length of time payments shall continue; to an award which may be modified by' subsequent written agreement changing terms of payment of compensation; to an award which contemplates a final payment entitling the employer to a final receipt for compensation. .Until such an award has been made, the review section has no function to perform.
For a time the employer voluntarily paid compensation, without any determination by the compensation commissioner or the district court that the employer should do so, and without any agreement with the workman respecting payment of compensation. When voluntary payment of compensation ceased, the workman made claim for compensation in the regular way, and the regular procedure for obtaining an award .of compensation was followed. The claim for compensation was denied. On appeal to the district court the denial of compensation was affirmed, and the judgment of the district court denying an award of compensation became final. A final judgment denying compensation is not an award of compensation, and the result is, there has been no award of compensation which may be modified. Liability may not be either increased or decreased by order of court.
The workman must find his remedy in the statute. The review section operates only on an award of compensation which has been made, and does not authorize a workman to procure an initial award of compensation under the guise of review of a final determination that he was not entitled to compensation. If the statute is defective, the defect cannot be cured by sophistical interpretation amounting to judicial legislation.
When the petition for review came on for hearing, the claimant desired a continuance for the purpose of making a showing on the merits of the petition. Continuance was properly denied, because the commissioner was without authority to consider the so-called merits of the petition.
The judgment of the district court is reversed, and the cause is remanded with direction to deny the petition for review.
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The opinion of the court was delivered by
Sloan, J.:
This case was decided by the court at the December, 1930, term. (Blevins v. Union Pac. Rld. Co., 131 Kan. 682, 293 Pac. 519.) A petition for rehearing was granted, and additional briefs have been filed by both parties. The question argued on rehearing is that of assumption of risk.
It is necessary to reexamine the testimony of the plaintiff in relation to this question. The evidence tends to show that the plaintiff was a fireman on a switch engine in defendant’s yards in Kansas City; that the engine was in transportation of interstate commerce; that the engineer, after effecting a coupling to several cattle cars, opened the throttle to its full capacity, causing a severe exhaust, which threw out of the smokestack a large volume of hot cinders; that immediately prior to the opening of the throttle the plaintiff had coaled the engine with fine coal or slack and taken his position in the engine cab, when he saw the engineer open the throttle to its full capacity. It was his duty to look ahead to see if there were any other engines coming across the viaduct. This was accomplished by putting his head outside of the cab window. The fireman had been in the yards for about a year and had been a fireman on a switch engine for three or four months. He knew that an engine threw sparks or cinders out of the smokestack; that there was a greater quantity of sparks or cinders when fine coal or slack was used; that the sudden starting of the engine would cause an exhaust, which would in turn force large volumes of cinders out of the smokestack, and that cinders were likely to fall in the eyes when one has his head outside of the cab. The jury made special findings of fact which are set out in the former opinion.
It is conceded by the parties to this action that the case is controlled by the federal employers’ liability act. The interpretation of the act by the federal courts of last resort is binding on this court. There is little or no dispute between the parties as to the rule of law. The difficulty is in the proper application of the law to the facts in the case. The appellant earnestly contends that under the evidence the plaintiff assumed the risk, as a matter of law.
The rule applicable to this case .is well stated in 2 Roberts Federal Liabilities of Carriers, 2d ed., § 833, as follows:
“He does not ordinarily assume the negligent act of a fellow servant; but if he becomes aware of the risk and danger arising therefrom and continues in the employment, or if the risk and danger arising therefrom are so obvious that an ordinarily prudent person under the same circumstances would have observed the one and appreciated the other, then an employee assumes the risk arising from the negligent act of a coemployee under the national statute.”
The author deducts this rule from a collation of the authorities on the subject.
In dealing with negligence as applied under the statute to fellow employees the courts appear to have made a general division of negligent acts creating a danger not assumed by the employee, and negligent acts assumed by an employee in the course of his employment.
The negligent acts of employer or coemployee that are sudden and of which the employee has no notice or knowledge creating a danger which cannot be foreseen are not assumed.
In Chicago, R. I & P. Ry. Co. v. Ward, 252 U. S. 18, the plaintiff, while engaged in his duty as a switchman, was thrown from the top of a car upon which he was about to apply the brake, through the negligence of the engineer. The court said:
“It was a sudden emergency, brought about by the negligent operation of that particular cut of cars, and not a condition of danger, resulting from the master’s or his representatives’ negligence, so obvious that an ordinarily prudent person in the situation in which Ward was placed had opportunity to know and appreciate it, and thereby assume the risk.” (p. 22.)
In Reed v. Director General, 258 U. S. 92, an employee was riding on a caboose which was being pushed by an engine. The employee was killed, due to the negligence of the engineer in failing to stop upon his signal. The court said:
“In actions under the federal act the doctrine of assumption of risk certainly has no application when the negligence of a fellow servant which the injured party could not have foreseen or expected is the sole, direct and immediate cause of the injury.” (p. 95.)
Where the employee has full knowledge of the negligence and appreciates the danger arising therefrom, he assumes the risk, if he continues in the employment.
“And, except as provided in § 4 of the act, the employee assumes the ordinary risks of his employment; and, when obvious or fully known and appreciated, he assumes the extraordinary risks and those due to negligence of his employer and fellow employees. (Seaboard Air Line v. Horton, 233 U. S. 492, 501; St. Louis, etc., Ry. v. Mills, 271 U. S. 344; Northern Ry. Co. v. Page, 274 U. S. 65, 75.)” (Delaware, &c., R. R. v. Koske, 279 U. S. 7, 11.)
Negligence of which the employee has knowledge readily yields to a division, where the employee must have time and opportunity to appreciate the danger, and where the risk is so obvious that he is charged with appreciation.
The employee’s knowledge of the source of peril does not bar a recovery unless it is shown that he appreciated the danger arising therefrom, and this is usually a question of fact for the jury, under proper instructions.
In Ches. & Ohio Ry. v. De Atley, 241 U. S. 310, the plaintiff, a head brakeman of many years’ experience, was waiting on the platform of the station where he had gone in the performance of his duty. He attempted to board his train, but due to its unusual speed his foot slipped and he was injured. The company invoked the defense of assumption of risk on the ground that the risk was an ordinary and usual risk and that if it could be considered an extraordinary danger it was obvious and fully known and appreciated. The court said:
“If the jury should find, as in fact they did find, that the speed of the train was unduly great, so that the risk of boarding the engine was an extraordinary risk, the question whether plaintiff assumed it then depended upon whether he was aware that the speed was excessive and appreciated the extraordinary danger, or, if not, then upon whether the undue speed and the consequent danger to him were so obvious that an ordinarily prudent person in his situation would have realized and appreciated them. The [circuit] court of appeals reasoned . . . that as a matter of common knowledge, one standing in that position cannot form an accurate judgment of its speed until it comes quite near to him; . . . and that ‘all the circumstances tend to show that knowledge of the speed of the train came to him so suddenly and unexpectedly that he did not have an opportunity to realize and appreciate the danger of getting on.’ Conceding the force of the reasoning, we are bound to say that, in our opinion, it cannot be said, as matter of law, to be so incontrovertible that reasonable minds might not differ about the conclusion that should be reached.” (pp. 317, 318.)
Where, however, the consequent danger arising from the negligent act was obvious and so patent as to be readily understood by an ordinarily prudent person, the employee cannot be heard to say that he did not realize or appreciate it and he is charged as a matter of law with the assumption of the risk.
In Jacobs v. Southern R. R. Co., 241 U. S. 229, the court said:
“An experienced employee, admittedly knowing the material conditions and presence of a pile of cinders who attempts to board a moving engine with a vessel of water in his hand, must be considered as appreciating the danger and assuming the risk although at the time he may have forgotten the ex istence of the cinders; and this is so even if the employer was negligent in allowing the cinders to remain. There being no violation of any safety statute, the common-law defense of assumption of risk is not eliminated in such a case by the employers’ liability act.” (Syl. ¶ 2.)
In Briggs v. Railroad Co., 102 Kan. 441, 175 Pac. 105, this court, after a review of the federal authorities, held:
“The engineer of a freight train started the train on an interstate journey while the fireman was in a lunch room eating a lunch. The fireman came out of the lunch room, and seeing the train in motion, climbed on top of a caito go forward to his place in the engine cab. While going forward over the car tops he stumbled and fell between cars and was killed. He was an experienced and competent fireman, and knew, or should have perceived, the dangers which he would normally and necessarily encounter in passing over the train. Held, under the federal employers’ liability act he assumed the risk.” (Syl.) '
The sole question in the case, as now presented, is whether the negligence established by the evidence is of such character that knowledge thereof charges the employee with an appreciation of the danger arising therefrom. Knowledge of the negligence is admitted. In fact, the plaintiff is the only person who observed it. He also admitted that he knew the consequences that would follow from the pulling of the throttle to its full capacity. He testified:
“Q. ‘However, I realize that the slack must be used in some way or another. While using lump coal would not prevent sparks altogether, it would cut them down quite a bit, and there would not be near the danger of an injury of this kind.’ Is that right? A. Yes, sir. . . .
“Q. (Interrupting.) Didn’t you know that for six months when you were working there? A. Yes, sir. . . .
“Q. And that is whenever the throttle is open, isn’t it? Sometimes more cinders and sometimes less? A. The harder you pull that throttle open the larger chug it makes.
“Q. And you knew that? A. Sure.
“Q. And you knew the more you pull the throttle open the harder the exhaust would throw out cinders? A. Yes, sir. . . .
“Q. . . you knew that would throw out more cinders, and notwithstanding that you stuck your head out of the window? A. Yes, sir; I stuck my head out of the window.”
The jury found in answer to special questions that the plaintiff knew of the danger of cinders lodging in the eyes of persons employed in or about railroad yards and that it was one of the normal and usual hazards incident to that kind of employment, but that he did not appreciate it.
The plaintiff was an experienced fireman and had been working on this particular job for about four months. We must assume that he was a man of ordinary intelligence and would therefore be expected to know and appreciate the things that are obvious to the ordinary apprehension. His own statements clearly indicate that he comprehended the nature and degree of the danger arising from the opening of the throttle and that he voluntarily put his head out of the cab window knowing that he was likely to get a cinder in his eye. He assumed the risk and must abide the. consequence.
In Butler v. Frazee, 211 U. S. 459, 466, the court said:
“But where the conditions are constant and of long standing, and the danger is one that is suggested by the common knowledge which all possess, and both the conditions and the dangers are obvious to the common understanding, and the employee is of full age, intelligence and adequate experience, and all these elements of the problem appear without contradiction from the plaintiff’s own evidence, the question becomes one of law for the decision of the court. Upon such a state of the evidence a verdict for the plaintiff cannot be sustained, and it is the duty of the judge presiding at the trial to instruct the jury accordingly.”
Taking into consideration the admitted facts in the case, including the knowledge and experience of the plaintiff, the finding of the jury that “he knew [the danger] but did not appreciate it,” is inconsistent. Appreciation of a danger readily understood by an experienced employee does not mean more than actual knowledge.
The evidence and findings of the jury presented a question of law for the decision of the court, and the trial court erred in refusing to sustain the motion of the defendant for a judgment in its favor.
The judgment is reversed and remanded with instructions to enter judgment for the defendant.
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The opinion of the court was delivered by
Dawson, J.:
This was a proceeding in habeas corpus between two sisters for the custody of a child.
Plaintiff was the child’s mother. The defendant Sophia Scheuerman is the child’s aunt, who has had charge of its rearing for several years.
Shortly before this action was begun the child’s mother sought to obtain custody of it by force while it was attending school. A hurried telephone call brought Sophia to the scene, and she slapped her sister and sat on her. This lawsuit followed.
Plaintiff’s petition for the writ alleged that she was the natural mother of Nadine Smith, a minor nine years old, and entitled to her care, custody and control, and that the child was restrained of her liberty by defendant Sophia and her husband, “the cause or pretense of said restraint being unknown to your petitioner,” and that plaintiff’s demand upon defendants for the surrender of the child’s custody had been refused.
The answer and return of defendants alleged that their custody of the child was legal, that she had been placed in their custody by plaintiff three years previously, and that their custody was for the child’s best interests. Answering further, they alleged—
“That respondents are so situated financially as to be able to and they are giving the said child the benefits, training, nurture and care of a salutary home life, as a child of their own; that they are sending her regularly to school, taking her with them to Sunday school and church services, providing for her, giving her the best of care and affection, and in all things seeking to throw around her the best environment possible and make of her a noble and virtuous woman.
“That the said petitioner is not a suitable person to have the custody of the said child in this, to wit:
“That she is married, but living apart from her husband; that she has no established home but works as a domestic in the homes of her employers as occasion may find them. That petitioner cannot give the said child proper nurture, care and training, has no disposition to do so, and will not if given the custody of the said child. That the said, petitioner is of bad reputation, and is irreligious, profane, indecent and immoral, and not a fit person to have the care and custody of the said minor child.”
The evidence tended to show that the child, Nadine Smith, had first been brought to defendants’ home by the plaintiff mother when it was between four and five years of age. Sophia kept it for six months. The mother then took it to Kansas City for six months, but eventually sent it back to Sophia because she was not able to keep and feed it properly. At that second sojourn in defendants’ home the child stayed from March until August, when plaintiff took it back to Kansas City. Sophia testified:
“She did not want to take her. I asked her to take her back, because Nadine was old enough to go to school; she took her back and kept her about ten days, and said, ‘Sophia, you are going to have to take care of this child, I can’t do it.’ ”
That occurrence was three years ago. Since that time Nadine has been in the custody of Sophia and her husband. They have sent her to public school and Sunday school and given her proper home training. The evidence tended to show that until about a year before this lawsuit began plaintiff, the child’s mother, had no fixed place of abode, that she was living apart from her husband, and that she was inclined to drink and swear and keep late hours with men, some of whom were married.
However, the evidence also tended to show that about a year before the trial plaintiff had procured employment as a domestic- servant in a respectable home in Great Bend, since which time she has been behaving discreetly, and that her employers were so well disposed towards her that they were willing that the child reside with plaintiff in their home. The- other evidence pro and con need not be rehearsed.
The trial court, without request from either side, made certain findings of fact, some of which read:
“II. Elizabeth Smith is a married woman, living apart from her husband; they having separated about three years.ago. The evidence shows that the separation was caused by the association of the petitioner with other men.
[At the oral argument we were advised that she has been divorced from her husband since this finding was made.]
“III. Several months after the separation Mrs. Smith obtained employment as a domestic in a home at La Crosse, where she worked for about a year and a half, and for the past year has been employed as a domestic in a home at Great Bend.
“IV. The petitioner during the time of her residence at La Crosse was addicted to the use of profane language, and on at least one occasion drank intoxicating liquor, and during such time her reputation for chastity and morality was bad in that community.
“V. Petitioner during her residence at La Crosse frequently kept company with men other than her husband, and has continued to do so during her residence at Great Bend. During her residence at La Crosse and while Nadine Smith was in the custody of the Scheuermans petitioner visited her daughter about once a week, usually for short periods of time, but her visits have been much less frequent since she has lived at Great Bend. She has furnished some of the clothing for her daughter, and has paid for an operation which her daughter had about two years ago.
“VII. Respondents have had Nadine in their home for more than three years, and had her for two periods of about six months each prior to that time. Nadine was brought to the home of the respondents about three years ago by her mother, and they were told by her they would have to care for Nadine, as the mother was not able to take care of her. Nadine was brought to the home on the prior occasions under practically the same circumstances. During the time the mother was working as a domestic in La Crosse the respondents tried to get the petitioner to take Nadine and send her to school, but the mother refused to do so, giving as her reasons that she did not want to be tied down by having to take care of the child.”
The trial court’s conclusion of law was that it would be for the best interests of Nadine Smith to remain in the custody of the respondents, and judgment was accordingly entered in their behalf.
Plaintiff appeals, contending, among other matters, that the evi dence was insufficient to prove that she was an unfit person to have the custody of her own daughter.
It will be noted that the trial court refrained from making a specific finding on that vital matter, the only one which would justify a judgment depriving a mother of the custody of her own child. It is true, of course, that the trial court was of the opinion that it would be for the best interests of the child to remain in the custody of her uncle and aunt, but the rule of law is absolute that what is for the best interest of a child is its parent’s exclusive concern — not a matter for judicial arbitrament — except where the parent is an unfit person to have such custody. (Whittaker v. Coffman, 112 Kan. 597, 598, 211 Pac. 1116, 212 Pac. 912; In re Kailer, 123 Kan. 229, 255 Pac. 41; Melroy v. Keiser, 123 Kan. 513, 255 Pac. 978. See, also, Hollis v. Brownell, 129 Kan. 818, 284 Pac. 388.) In so far as the case of Hodson v. Shaw, 128 Kan. 787, 280 Pac. 761, may be construed as stating a rule at variance with this principle, it is disapproved.
While the evidence for appellees tended to show that plaintiff was wayward and perverse in speech and conduct prior to securing employment as a domestic servant in the home of a physician and his wife in Great Bend, about a year before this action was tried in the court below, there was persuasive evidence that her behavior had been exemplary since that time until the incident where she sought by forcible means to repossess herself of the child at the schoolhouse. The fact that she relapsed into profanity and violence under the stress of that incident ought not to weigh materially against her, since it was manifestly provoked by the frustration of her maternal instincts.
A majority of this court attach a good deal of significance to the failure of the trial court to make a specific finding that plaintiff was not a fit person to have the child’s custody. The trial court did find that at the time of her residence in La Crosse (more than a year before this action was begun) plaintiff’s reputation for chastity and morality was bad, but that was somewhat remote in point of time. Moreover, the legal consequence of such a reputation is not that of being deprived of the custody of one’s own natural-born children. A judicial declaration .to that effect would be revolutionary indeed. Some of the justices of this court are much impressed with the fact that the trial court based its judg ment on plaintiff’s waywardness which was past and gone, and they cannot discern sufficient evidence in the record to show plaintiff’s unfitness at the time she sought the court’s aid to recover her child.
For these reasons the judgment of the district court is reversed and the cause remanded with instructions to enter judgment for plaintiff.
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The opinion of the court was delivered by
Harvey, J.:
This is an action for an accounting to determine the sum due plaintiff for salary, and for judgment for the amount found due. Defendants were partners. After the action was brought the plaintiff settled with one of the defendants and dismissed the case as to him. Plaintiff recovered against the other defendant and he has appealed.
Harry M. Washington and Don A. Henry, partners as Washington, Henry & Co., were engaged in the business of tax accountants, with offices at Kansas City, Mo., and at Topeka and Wichita, Kan. Sometime in the fall of 1919 they employed plaintiff, who was an expert accountant, and agreed to pay him a salary of $4,000 per year, and in addition thereto an undivided one-sixth of the net profits of the partnership business. Sometime within the year 1920 defendants opened an additional office at Hutchinson, Kan. While the business from all the offices was handled somewhat as a unit throughout 1920, Washington had the more direct charge of the offices at Wichita and Hutchinson, while Henry gave his special attention to those at Topeka and Kansas City. Plaintiff worked mostly at the Wichita office, but also worked from any of the offices as his services were needed. His salary, including the one-sixth of the net profits, was paid for the year 1920 except as to one item. This was a fee received by the partnership of $12,750 on December 31, 1920. About January 1, 1921, plaintiff was advised by defendants that an additional accountant would have to be employed, particularly for the Kansas City and Topeka offices, and that thereafter plaintiff would not receive one-sixth of the profits of those offices. Defendants also talked, about that time, of dissolving their partnership, but the dissolution was not actually agreed upon or made until November or December, 1921, at which time they did dissolve partnership and agreed between themselves that the dissolution should take effect as of the first of January, 1921. At the time of the dissolution of the partnership between defendants, Washington took the business of the Wichita and Hutchinson offices and Henry that of the Topeka and Kansas City offices. Plaintiff was not satisfied with the share of the profits upon which his salary, in addition to the $4,000, was based for the year 1921, and in September, 1922, he brought this action. In his petition he sought an accounting of the net profits of all of the offices for the year 1921. At a hearing as to the scope of the accounting soon after the action was brought the court held plaintiff was entitled to an accounting with respect to the $12,750 fee above mentioned and with respect to the business of the Wichita and Hutchinson offices for the year 1921, but that he was not entitled to an accounting of the income of the Kansas City and the Topeka offices for that year. From this ruling the plaintiff did not appeal. The action appears to have remained dormant for several years, but in 1928 it proceeded to trial for an accounting, as previously ordered. At that time plaintiff, in open court, dismissed the action as to defendant Harry M. Washington. Evidence was taken on the accounting between the plaintiff and defendant Don A. Henry. The court found defendant Henry was indebted to plaintiff for one-sixth of the $12,750 fee heretofore mentioned, and also was indebted to him for the additional sum of $3,010.79, which, with interest on both items to the day of judgment, amounted to $7,515.94, and rendered judgment accordingly.
Appellant contends that plaintiff, having settled with one of the defendants, Washington, for a claim against the partnership, such settlement inures to his benefit, and that plaintiff therefore could not recover. There is not much trouble about the rules of law applicable to this question. It is well settled, of course, that partners are agents of each other for the transaction of partnership business. Each of the partners has authority to transact partnership business, and where one who has a claim against the partnership settles that claim in full he cannot thereafter maintain an action either against the firm or the partner with whom he did not negotiate the settlement. Our statute (R. S. 56-201) provides that whenever a partnership is dissolved one of the partners may settle with any or all of the creditors of the partnership, and such settlement “shall be a full and effectual discharge to the debtor or debtors making the same, and to them only,” of his liability to the cfeditor with whom the same is made. This statute has been applied in City of Topeka v. Brooks, 99 Kan. 643, 647, 164 Pac. 285, and cases there cited. The real question in this case is whether plaintiff, in making a settlement with Washington, was settling his claim against the partnership, or was simply making a compromise with Washington which relieved him of liability to plaintiff, with the intention and purpose of pursuing his claim against the other partner. While the trial court was not asked to make a specific finding on this question, and did not do so, its judgment can be supported only upon the theory that the settlement made with Washington was as to his liability only, the plaintiff reserving to himself the right to proceed against Henry for the balance of his claim. Appellant contends that the evidence does not support such a finding and a judgment based thereon. On this point the question presented to this court is whether there is evidence to sustain the finding and judgment of the court.
Plaintiff’s settlement with Washington was made in the fall of 1922, after this action was brought and more than a year after Washington and Henry had dissolved their partnership. With respect to it Washington testified:
“In my settlement with Mr. Smith I settled only my personal liability with reference to his claim for profits in the four offices. ... He mentioned time and again that he felt he had a claim against Henry and he expected to call me as a witness. I wanted to remain neutral. I had a settlement to make myself. I made a settlement.”
Plaintiff testified:
“In September, 1922, at the time this case was commenced, I had not settled with Harry Washington. Later I settled with him. I was paid, I think,. $7,000. You see, I had advances on the books charged to my account, that was about $4,000, and in addition to that I was paid in money the sum of $3,010, and that settled my account with Washington. I don’t believe I made a written release. . . . One of the considerations of the settlement was his promise to testify in this lawsuit against Don Henry regarding the terms of the employment. . . . Henry has never made settlement with me for any of the profits of the business for the year 1921. ... In my settlement with Harry Washington, I just agreed to release him from any liability. ... I was releasing Harry Washington from any liability on his part that the partnership owed me, from all the offices. ... I agreed to dismiss him from all liability, and the suit was to stand against both of the parties, but I told him I would not attempt to get any judgment against him personally. ... I did not settle with Mr. Washington on the basis that'I was paid a certain percentage of various accounts when the collections had been made. . . . Exhibit ‘32’ is a record taken from the books of Washington, Henry & Company showing the financial condition of December 31, 1921, and the profit made during the year 1921 from the Wichita and Hutchinson offices, and also a statement showing the settlement I made with Mr.- Washington, regarding his liability to me. ... I used it as a basis for my settlement with Harry Washington. ... I made a compromise with Harry Washington with regard to his liability. ... At that time he had my note for $2,000, and the company owed me under salary and commission $2,100, and we offset the whole thing. . . . The only claim I had against Harry Washington was with reference to my services for the year 1921. At that time ... I owed him personally and Washington-Henry Company owed me, and that offset. ... I had already filed suit against Washington-Henry & Company. . . . I told him this suit had been filed, and I would personally release him if he would assist me in the suit and testify in my behalf, which he agreed to do, therefore I compromised the claim with him individually regarding his liability in the matter at quite a discount.”
From t-his evidence it is reasonably clear that plaintiff’s settlement with Washington was with the intention, on the part of both of them, to relieve Washington from further liability to plaintiff, but that there was no intention to relieve Henry from liability; at least there is substantial evidence to support a finding and judgment of the court predicated on that view.
Naturally, if one has a claim against a partnership, and after its dissolution he settles with one of the partners in such a way as to relieve the one settled with from further liability, but with the intention of pursuing his claim against other partners not settled with, the amount received by the creditor from the partner with whom he settled should be taken into account in rendering judgment against the partners not settled with. But it is not contended by appellant that the amount received by plaintiff from Washington was not taken into account in the judgment rendered in this cause; hence we shall give that thought no further attention.
Appellant’s second contention is that the court should not have rendered judgment in favor of plaintiff for a portion of the $12,750 fee above mentioned. It is argued that the computation to determine the portion of plaintiff’s salary based on net profits was to be upon the profits as shown by the books for the calendar year. The evidence discloses that while this fee was received by the partners on December 31, 1920, it was not entered on the books of the partnership as having been received until January 2, 1921. That being business which related to the Kansas City office, and the court having found plaintiff was not entitled to an accounting of the profits of the Kansas City office for the year 1921, appellant contends this item should not have been taken into account. There is evidence, however, that this profit was not- to be computed on the basis of what the books showed for the calendar year. But we need not worry with that feature of it. There is evidence that this money would have been paid early in December, but the defendant, Henry, asked the party not to pay it until the last of the month. There is further evidence that when it was received plaintiff spoke about it being taken into account in determining the amount of his salary, but both defendants told him they preferred to enter it on the books as of January 2, and the fact they did so would not affect his right to receive the one-sixth in settlement. In view of this evidence it seems clear the court properly took that item into account.
Appellant complains of a question of practice. It seems that the books of Washington, Henry & Company, showing the business transacted at the Wichita and Hutchinson offices for the year 1921, were in Wichita as late as December, 1921, and that sometime later they were moved to defendant’s office at Kansas City. While they were at Wichita plaintiff made up a detailed statement from the books showing income, disbursements and profits. After the books had been removed from Wichita, and before the trial of this case, plaintiff asked for the books, and on his motion the court made an order that defendant deposit with the clerk of the court the books, records, papers, correspondence, files, accounts and statements showing the business, including the income and expenses of the partnership for the year 1921 from the offices at Wichita and Hutchinson, and that plaintiff-have the'right of inspection of the books and files so deposited. Defendant did not comply with this order, and made an affidavit that the books and records were not in his possession. The court found that the books and records were, or had last been, in the possession of defendant, and on his failure to produce them permitted the introduction in evidence of the statements which had been compiled from them by the plaintiff while the books were still at Wichita. Appellant complains of this. We see nothing erroneous in the ruling. The basis for the complaint is that defandant did not, at the time the court made the order, have such books and records; but there appears to have been no explanation of what became of them. More than that, it is not contended by appellant that the statement made by plaintiff from the books and used in evidence was in any respect inaccurate.
The record discloses no error in the case, and the judgment of the court below is affirmed.
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The opinion of the court was delivered by
Smith, J.:
These actions are petitions for new trials filed more than three days after judgment on the ground of newly discovered evidence. In each case new trial was refused. Petitioners appeal.,
In each case suit was filed by the Kansas Wheat Growers Association against a former member, alleging a contract on the part of defendants with the plaintiff corporation to sell all the wheat that .should be raised by defendants during the five years next following the signing of the contract to the plaintiff. It also alleged breach of the contract by defendants. Defendants filed general denials admitting they signed the contracts and denying the allegations. In the Smith case four jury trials were had. The last one resulted in .a verdict for $512.90. This was appealed to this court, where the judgment of the lower court was reversed, and the casp sent back with instructions to enter a judgment for $1,109.45. In the Kratzer •case a trial was had and judgment was entered for plaintiff in an amount not disclosed by the record. Some time subsequent to the 'entering of these judgments the defendants in each case filed petitions under R. S. 60-3005 setting out newly disclosed evidence. These petitions set out that since the trials and judgments the defendants had discovered that the organizers of the plaintiff corporation had deceived them as to certain facts that had to do with its organization. It'set out that at the time the corporation was being organized the members were solicited to sign a contract to deliver all the wheat that they should raise to the Kansas Wheat Growers Association, and that each contract provided that before it should become binding and effective on signers there should be signers, who were growers, on similar contracts in the aggregate of fifty-one million bushels of wheat for 1921, and that on failure to secure sufficient signers by .June 15, 1921, the association would cancel all agreements, and that if the association was not legally organized by September 1, 1921, all money collected would be returned and the business closed up. It further set out that in June, 1921, it became apparent that signatures for fifty-one million bushels could not.be obtained, and that the organization committee prepared an amendment to the contract substituting five million bushels for fifty-one million, and signatures to the amended contract were then obtained. -The petition further set out that signatures for five million bushels could not be secured, that no statement was ever made and signed by the chairman of the preorganization committee, and that the growers of five million bushels of wheat had not signed the amended contract. It also alleged that a large number of the contracts procured by the preorganization committee were altered by changing the number of acres shown on each contract to have been sown in wheat that year to a much larger number.. In the Smith case Smith was solicited to join the association and sign one of the contracts. This he did some days after the corporation was organized. He was told by an agent of the association that all the conditions of the contract had been complied with and the requisite number of acres signed up. He alleged that he relied on that statement and would not have signed the contract had he known it was not true, and he did not discover it was false till January, 1929, long after the trial of the action involved. In both cases the petition alleged that the newly discovered evidence constituted a good defense to the action and that appellee had so manipulated its corporate records as.to conceal from appellant the true.state of affairs. In each of the original cases the petition had pleaded the contract; that the plaintiff had done everything it. was required to do under it and its breach by defendant. The answer had in each case been a general denial.
In the Kratzer case the petition for a new trial alleged about the same facts.
In the Smith case the court heard the evidence that was offered in support of the petition and sustained a demurrer to the evidence for the reason that the grounds for a new trial had not been established by testimony.
In the Kratzer case a demurrer to the petition was sustained on the ground that what was offered was a newly discovered defense. In this case the court stated that the judgment was rendered after the court had considered the evidence and pleadings in the original case. In neither case was the record of the original case in the court below brought here with this appeal.
In considering whether new evidence is sufficient to warrant the granting of a new trial, the court considers the evidence and pleadings offered at the trial of the case in connection with the evidence offered in support of the motion for a new trial and upon the whole case determines whether or not the verdict or decision given at the trial was wrong. (Haughton v. Bilson, 90 Kan. 360, 133 Pac. 722; Lewis v. Shows Co., 98 Kan. 145, 157 Pac. 442.) Appellant urges that the rule is that the newly discovered evidence must only be such as would with reasonable probability have led to a different conclusion, and cites Sexton v. Lamb, 27 Kan. 432. In the case of Haughton v. Bilson, supra, that case is overruled on the authority of sections 307 and 308 of the civil code, same being R. S. 60-3004 and 60-3005.
The record in the court below of the original cases has not been brought here. In the Smith case evidence was introduced to sustain the allegations of the petition for a new trial. In the Kratzer case no evidence was introduced. Probably the petition for a new trial was presented to the same judge of the district court that heard the original case and probably that court took notice of the record that had been presented in the original case. Indeed, in the Kratzer case the court stated that he was considering the whole case. Appellant is asking this court, however, to overturn the decision of the district court when one of the important elements that the court considered at the hearing is left to our speculation. The pleadings are a part of this record, but the evidence is not.
We think that for this reason the decision of the district court is correct.
Moreover, in the Smith case an examination of the evidence produced on the hearing of the petition convinces us that the decision of the district court was correct, provided we assume for the sake of argument, as we must from the state of the record here, that the evidence in the original case was such that if the allegations had been proven they would have constituted a defense to the action. The court held that the evidence offered did not sustain these allegations ; that is, appellant stated that he could prove certain things if he should be given a new trial, and when his petition came on to be heard he was not able to prove them by the evidence offered.
Appellant urges that the record shows that he produced sufficient proof that appellee was concealing evidence which it had been requested to furnish by appellant that would have proven the allegations of the petition so that the court should have sustained his motion to apply the rule that such a failure to produce evidence established in the case the presumption that evidence to disprove the negative averment advanced by appellant did not exist.
This rule is always addressed to the sound discretion of the court. In this case the court in its discretion refused to apply the rule. We see nothing in the record to warrant us in overturning the conclusion reached. The evidence offered by appellant rather tended to prove that sufficient contracts had left the control of appellee in the regular and ordinary course of its business so that no definite proof could be made of allegations of the petition.
The judgment of the district court in both cases is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from an award of compensation to a workman who sustained injuries in his employer’s coal mine, resulting in the loss of one eye and an almost total and permanent disability of the other.
The pertinent facts were these: On January 20, 1928, the appellee, Hugh Harrigan, and a fellow workman were operating a pump in the coal mine of the Western Coal and Mining Company in Cherokee county. The mine water was red and stagnant and charged with foul elements injurious to the eyes. The pump was not functioning properly and Harrigan stoóped to see what was wrong with it. While so engaged the packing of the pump blew out and the foul water was thrown into his eyes, so greatly injuring them that the left one had to be removed within a few days, and the injury to the right eye was such a source of pain and anxiety to the workman that he had to make two protracted sojourns in a Kansas City hospital for its treatment. Eventually its vision, too, was found to be too greatly impaired to be industrially useful to him.
That the injured workman was entitled to compensation was conceded without the formality of a demand and award by the compensation commissioner. The cashier of the appellant company made a computation based upon 60 per cent of appellee’s average weekly wages and on the assumption that his accident and injury would only result in the loss of one eye. On that basis and assumption the cashier advised the claimant that he would be entitled to $15.58 per week for 110 weeks. Harrigan expressed a desire to have $500 advanced to him so that he would have funds to go to a hospital to have his remaining eye treated. The cashier took up this matter with the defendant company and an arrangement was effected whereby the sum of $372.32 was advanced to appellee and his weekly compensation correspondingly reduced from $15.58 to $12 per week.
Payments of compensation pursuant to this amicable arrangement were made for 110 weeks, at the end of which period (April 19, 1930) they ceased. Within ninety days thereafter, on May 22, 1930, appellee served written notice and demand for compensation at $18 per week for the loss of his left eye and for a similar amount for one-half of the loss of the sight of his right eye.
The respondent mining company filed an answer, alleging that the injury which claimant had sustained in its coal mine in January, 1928, had affected his left eye only; that it had effected a settlement with him therefor on March 27, 1928, whereby it had agreed to pay him $15.58 per week for 110 weeks, which agreement it had faithfully kept until April 19, 1930, and that it had paid him the agreed total sum of $1,713.80; but that claimant had refused to execute final release therefor, although he had signed a receipt for the compensation paid him, and that this instrument had been filed-with the compensation commission within sixty days after the last item of compensation had been paid to the claimant.
Defendant’s answer also pleaded that the time, place and particulars of the accident to claimant’s right eye had not been given to it within ten days, and defendant did not have actual knowledge of the injury to claimant’s right eye; that no written claim for compensation was made upon it within ninety days after the accident; that no proceedings were instituted within one year after the date of the agreement for compensation to have it set aside, and that for these and other reasons needless to repeat defendant denied liability.
To this answer claimant filed a reply alleging that no agreement of settlement was ever made between claimant and respondent prejudicially affecting his right to compensation as provided by statute; that he did not intentionally sign any instrument to that effect; that no written agreement purporting to settle his compensation had been filed with the compensation commission as required by statute and that any such purported agreement was void.
The matter was heard before certain examiners for the commission, and an award in claimant’s behalf was made allowing compensation at the rate of $18 per week for 415 weeks, and finding that $830 thereof was overdue and payable at once and that payments of $18 per week should commence at the time of the award and continue for 270 weeks. While the basis of this award is not indicated in the record, it appears to have been an award for the loss of both eyes — loss of one and loss of use of the other — for which the statute allows 60 per cent of the workman’s average weekly wages for eight years, with a deduction for the 110 weeks’ payments of $15.58 per week made by the respondent prior to the institution of formal proceedings before the compensation commission.
The respondent appealed to the district court from this award, and on a review of the record made before the compensation commission that tribunal made its own findings of fact and conclusions of law, not greatly.at variance with those of the commission. Part of the court’s findings read:
“Second: That as a result of said accident, the left eye of the claimant was totally destroyed and had to be removed within a short time after the accident. That as a result of said accident the right eye of the claimant was injured and became inflamed and resulted in scar tissue forming over the sight of the right eye, destroying at least three-fourths (%) of the vision of the right eye, and to such an extent as to destroy sufficient sight of said eye as to render claimant industrially blind. That as a result of said accident the claimant has suffered a total and permanent disability and been left in a condition that he is unable to follow his avocation as a coal miner or any avocation that requires the use of the eyesight.
“Third: That claimant’s average weekly wage at the time of the injury was in excess of $30 and the amount the claimant is entitled to for total permanent disability is $18 per week, and that any agreement or understanding that less amount was due, was entered into by and through the mutual mistake of both parties and such agreement, if any, is hereby set aside and held to be of no legal force and effect.
“Fourth. . . . That a certain agreement was entered into between the claimant and respondent to secure for the claimant an advance of money to have his right eye treated, and it is contended by the respondent that this agreement should be construed and held as a final settlement of compensation by the agreement of the parties. The court finds, however, that this agreement was not filed with the commissioner of compensation within the time or in the manner prescribed by law and it is, therefore, considered unnecessary for the court to construe the meaning of the said agreement.
“Fifth: The court finds that compensation was due to the claimant from the respondent at the rate of $18 per week for 415 weeks, $1,780 of which has been paid, leaving a balance due and payable in the sum of $5,690, $1,118 of which is now due and payable in a lump sum, and the claimant is entitled to receive, in addition to the above sum, the sum of $18 per week until he has received, in all, 415 weeks’ compensation.”
Judgment was entered accordingly, and defendant appeals, urging various objections to the judgment.
The first objection is that no demand for compensation for injury to the right eye was made for more than two years after the accident. This contention is only a half-truth. No formal demand for compensation for injury to either of the claimant’s eyes was made. Defendant began to pay compensation without demand. It asserts, of course, that it merely paid for the loss of the left eye, but the claimant never assented to the voluntary award of $15.58 per week for 110 weeks, or the payment of $12 per week and $372,32 advance payment, as all the compensation due him for the loss and injury to both his eyes. Defendant can hardly be heard to say that it did not know the workman’s right eye was injured, otherwise there would be no apparent reason why it should have given him an advance of $372.32. The triers of fact have accorded credence to the workman’s evidence that he apprised his employer as to the purpose for which he asked that advance — to obtain funds to go to a hospital to try to have his other injured eye saved. Defendant suggests the existence of an analogy between this case and that of Murphy v. Cook Construction Co., 130 Kan. 200, 285 Pac. 604. In that case compensation proceedings for the loss of one eye were formally instituted, an award allowed and final payment made, and more than ninety days elapsed thereafter before any demand was made for compensation for an injury to the second eye. Here none of these conditions existed. In Schweiger v. Sheridan Coal Co., 132 Kan. 798, 297 Pac. 688, which is another case cited by defendant, this court said:
“It is true, of course, as was noted in Murphy v. Cook Construction Co., 130 Kan. 200, 285 Pac. 604, that where a claim for compensation has been timely made and an award made thereon, such award may afterwards be raised or lowered before final payment is made, if subsequent developments should justify it. The statute makes provision for that possibility (R. S. 44-528), and this court would not hesitate to make it apply to a situation where compensation was being paid without the formality of an award having been made by the compensation commissioner.” (p. 801.)
The voluntary payments of compensation for many weeks were sufficient acknowledgment of the company’s cognizance of claimant’s injury sustained in its service, and whether such payments were made for injuries to one eye or to both was a mere question of fact. Moreover, the statute contemplates the possibility that other injuries than the one for which compensation is being paid may belatedly develop out of the same accident, and it therefore provides for an increase of compensation upon a timely and proper showing therefor. Here the question reduces to this simple proposition: If an employer pays compensation to a workman without the formality of notice, demand, and a formal hearing before the compensation commission, or without invoking the services of the statutory committee of arbitration, does the workman lose any of the advantages to which he would otherwise be entitled under the compensation act? We hold not. So long as the employer pays compensation sufficient to indicate an acknowledgment of his liability to his injured employee the employee need not invoke the formal proceedings outlined in the statute. When this informal payment of compensation is suspended, and the injured workman considers that he has not been fully paid, he must invoke the statutory steps within ninety days. (R. S. Supp. 1930, 44-520a; Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, 286 Pac. 396, syl. ¶ 2.) Here the workman did invoke them within that time. He therefore lost nothing by accepting such compensation as his employer chose to give him prior to the suspension of compensation payménts on April 19, 1930.
Appellant argues that there was no causal connection between the accident and the claimed injury. It cannot be denied that there was some evidence of such connection, and as our jurisdiction is limited to a review of questions of law it is useless to debate questions of disputed fact in this court. (R. S. Supp. 1930, 44-556; Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 Pac. 818.)
Defendant presses upon our attention the agreement and final receipt. Touching such agreements the statute reads:
“Compensation due under this act may be settled by agreement; subject to the provisions contained in section 27 of this act.” (R. S. Supp. 1930, 44-521.)
Section 27 (R. S. Supp. 1930, 44-527) provides that agreements pertaining to compensation must be filed with the commission. The trial court’s fourth finding says that the agreement was not filed with the commission within sixty days as required by law (R. S. Supp. 1930, 44-526), and it is therefore of no legal significance.
So far as concerns the matter of a final receipt, it does not appear that any such instrument exists. Appellant refers to the hardship resting on an employer when the workman who has been paid in full refuses to execute, acknowledge and verify the final receipt. (R. S. Supp. 1930, 44-527.) But that is a matter for legislative and not for judicial correction.
The next point discussed by appellant relates to the fact that one examiner heard the proceeding and the report of the award was signed by another. This is of no importance. It is the approval of the compensation commission which gives vitality to an award, and who or how many of its subordinate functionaries acted in getting the evidential details together for the commission to act upon is of no consequence.
A painstaking study of this recprd discloses nothing which would permit or excuse a disturbance of the judgment. It is therefore affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action by a real-estate broker for a commission. Another real-estate broker intervened and claimed the commission. The owners of the property sold conceded they were liable to a commission, paid the money into court, and asked to be relieved from further liability. Their concern here is that they not be required to pay two commissions. The principal contest is between the plaintiff and the intervener. The action was tried to the court, and judgment was for the intervener. The plaintiff has appealed.
The findings made by the trial court are as follows:
“Findings op Fact.
“1. The court finds that the plaintiff was a real-estate broker living at Tyrone, Olda., and that through correspondence the defendants Wells and Roberts listed with him for sale the property known as the Dodge ranch in Colorado, their first listing with the plaintiff being a net-price proposition. At some subsequent time the plaintiff and one of the defendants agreed to price the land higher and allow plaintiff SI per acre if he sold the land.
“2. The court finds that the interpleader, Chas. E. Dye, is a real-estate broker at Satanta, Kan., and that the defendants, Wells & Roberts, listed the Dodge ranch with him for sale and agreed to pay $1 per acre commission to the agent closing the sale.
“3. The court finds that Pierce and May were agents for the plaintiff Speakman; that Speakman and his agents first talked to Dunham about the Dodge ranch on a trip to Colorado made for the purpose of showing other land belonging to Speakman; that Speakman showed the ranch or a part of it that day and Dunham told him he would come back the following Sunday; that Dunham did not return the following Sunday; that Speakman waited at the ranch for him on Sunday, but Dunham did not meet him there; that Speakman saw him later in the day at Two Buttes and Dunham told him to ascertain the exact acreage (which Speakman did not then know) and ascertain the amount of a loan which could be obtained on the ranch; that Dunham would not become a purchaser of the ranch unless he could get a loan of a considerable amount thereon; that Speakman and his agents Pierce and May did not communicate to Dunham the amount of a loan that could be obtained on the ranch or the acreage it contained; that Speakman abandoned Dunham as a purchaser of the Dodge ranch.
“i. The court finds that after Speakman had abandoned his efforts to sell the ranch to Dunham, that Chas. E. Dye, working independently of Speakman, and without knowledge of Speakman’s prior effort to sell the ranch to Dunham, until the signed contract was presented to Wells, interested Dunham in the purchase of the ranch and induced Dunham to enter into a contract purchasing the ranch, and assisted in the procuring of the loan, securing of the abstracts and the final closing of the sale.
“5. The court finds that Dunham was not a purchaser who was ready, able and willing to purchase the Dodge ranch at any time that Speakman was endeavoring to sell the ranch to him, and would never have been a purchaser of the ranch had not Dye procured a loan of $15,000 for him to enable him to pay the same.
“Conclusions op Law.
“1. The court finds that Chas. E. Dye was the procuring cause of the sale of the real estate involved in this action, and is entitled to the payment of the commission of $1 per acre.
“2. The court finds that the plaintiff, Guy S. Speakman, abandoned the sale of the land to the purchaser and was not the procuring cause of the sale, and is therefore not entitled to any commission.”
Appellant complains of the findings of fact made by the trial court and argues the evidence at length. It would serve no useful purpose to discuss the evidence in detail. On some points the evidence was conflicting, and as to those the findings of the trial court are binding upon this court. There is an abundance of substantial evidence to support all. of the court’s findings.
Appellant argues that he is entitled to a commission even though the owners owed a commission to the intervener because of differences in the listing contracts. The listing contract with appellant was to find a buyer, while the contract with the intervener was that he should close a deal. The intervener did close the deal, but appellant contends that he found the buyer who did eventually purchase the property. It is true appellant first showed the land, or a part of it, to Dunham, the purchaser, priced it to him, and introduced him to one of the owners. But Dunham at that time was not ready to buy the property, nor was he able to do so unless he got a substantial loan on it. In appellant’s last conference with him appellant was to ascertain the acreage of the ranch property, which he did not then know, and a part of which had been shown to Dun-ham, and also was to ascertain and advise Dunham how much of a loan he could get on the land. He did neither of those things, nor did he later communicate with Dunham. The court was justified, under the evidence, in finding that Dunham was not then ready, able and willing to buy, and that appellant, on learning that Dun-ham had to have a substantial loan on the property, which he was to get in order that payment could be made in cash, abandoned his efforts to sell the property. He did not find a purchaser who was ready, able and willing to buy. Appellant did not have an exclusive listing of the property. His request for that had been denied. He knew it was listed with other brokers. Later the intervener, who knew Dunham, but knew nothing of appellant’s previous efforts to sell the property to him, opened negotiations with Dunham to sell the property to him. His listing contract required him to close a deal before he was entitled to a commission. He got Dunham to see the property more completely, and got him to execute a contract for the purchase of it and make a $5,000 payment, took the contract to the owners and had it executed by them, and at considerable trouble and expense negotiated a loan of $15,000 on the property for the purchaser in order that he might complete the purchase, and thereby earned his commission under his listing contract.
Appellant cites a number of authorities on the point that when a broker is employed to find a purchaser his authority is limited merely to that of procuring a purchaser to take the property at a price and on terms agreeable to the owner, and that if he interests a prospective purchaser in the property, who eventually does close a deal with the owner, the agent is entitled to the commission. That rule has been frequently applied, but in all those cases the facts were such that it could be fairly found that the broker was the procuring cause of the sale which was made. In most of those cases no other broker had anything to do with the transaction. These authorities are not applicable to a situation in which the property was listed with two or more brokers, and the question is, which of them was the procuring cause of the sale, and especially where it is found, on competent evidence, that the broker claiming a commission had abandoned his efforts to' sell the property, and the sale which was eventually made was not because of his efforts but because of the efforts of another.
To entitle plaintiff to a commission it is essential that his efforts were the procuring cause of the sale. (Votaw v. McKeever, 76 Kan. 870, 92 Pac. 1120; Crosby v. Bolmar, 111 Kan. 675, 208 Pac. 633; Trimble v. Dowell, 118 Kan. 733, 236 Pac. 644; 9 C. J. 611, and the many cases collected in the annotations; 23 L. R. A., n. s., 164; 9 A. L. R. 1194.)
We find no error in the record, and the judgment of the court below is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one by taxpayers in Ford county to enjoin levy and collection of taxes on their land for the benefit of a rural high-school district embracing territory in Ford and Clark counties, and known as joint rural high-school district No. 2, Clark county. A demurrer to the petition was sustained, and plaintiffs appeal.
The purpose of the action was to defeat tax levies by invalidating organization of the district — something which the state of Kansas failed to do in a direct action commenced on the relation of the county attorney of Ford county. [State, ex rel., v. Rural High-school District, 128 Kan. 797, 280 Pac. 892.) The petition told part of the story appearing -in the opinion in the'state case, and the contention is that on the facts stated the state superintendent had no power, on appeal, to fix the boundaries of the proposed district. The petition disclosed, however, by direct allegation and by necessary inference, that the district is in fact functioning as a rural high-school district within boundaries fixed by the state superintendent in May, 1928, through a rural high-school board which is levying taxes and is about to sell bonds to build a schoolhouse. That being true, these taxpayers may not be heard to say the order of the state superintendent fixing boundaries to include their land was void for want of jurisdiction or for any other reason.
Plaintiffs try to sidestep the numerous decisions of this court which disqualify them to maintain this action by saying they confess there is a de facto district in Clark county, and all they want to do is to attack a void order of the state superintendent. Attack a void order of the state superintendent, to what end? To invalidate organization of a district lying in two counties by excluding the land lying in one county. To exclude from the district that part of it which lies in Ford county would be to disorganize the district, and disorganization is a public matter, to be attended to by the attorney-general or the county attorney acting in the name of the state.
Plaintiffs say the decision in the case of Schur v. School District, 112 Kan. 421, 210 Pac. 1105, is conclusive in their favor. That the. decision in the Schur case is conclusive against plaintiffs is shown in the opinion in Scamahorn v. Perry, 132 Kan. 679, 680, 296 Pac. 347. To the list of steps in the organization of a proposed district which taxpayers may not contest, contained in the opinion in the Scamahorn case, may now be added action by the state superintendent in fixing boundaries.
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 to recover on the statutory liability of .bank directors who knowingly assent to the reception of deposits by their bank at a time when it is insolvent or in failing circumstances.
In 1921 the Cedar State Bank, in Smith county, got into financial difficulties, and the bank commissioner ordered it closed unless new capital was put into it. Some effort was made to satisfy his orders; a change was made in the cashier’s office and three bankers of neighboring towns, Hull of Kirwin, Bethka of Stuttgart, and Cushing of Downs, acquired a three-fourths interest in the bank and put $15,000 of new capital into it. Hull and Bethka became members of its board of directors.
The bank continued to function until October 22, 1923, when its operations were suspended and the bank commissioner took charge of its affairs. ' Efforts were made by interested parties, including this plaintiff, to rehabilitate the bank so that it could be reopened. As one of a number of depositors whose funds were tied up in the bank, plaintiff executed and delivered to it her written promise to accept certificates of deposit for the bank’s liabilities to her and to extend time to the bank for their payment. It reads:
“Defendants' Exhibit 1.
“Whereas, In consideration of the reorganization of the Cedar State Bank, of Cedar, Kansas, to take over the resources and liabilities of the said Cedar State Bank, which was closed October 22, 1923, by the state bank department; and whereas, I am a depositor in the said bank and holder of C. D. No. 2693, $707.50, C. D. No. 2684, $1,500, also guaranty certificate No. 49 for $28.44, I hereby agree to accept a certificate or certificates of deposit in the said reorganized bank, and hereby authorize the managing officers of the reorganized bank to issue a certificate, or certificates, of deposit in the amount of $2,235.94, the same to be due one-half in one year, balance in two years from the date of the opening of the reorganized bank and to draw interest at the rate of four per cent per annum, interest on the old certificate to be included in those issued by the reorganized bank.
“In case of failure to effect a reorganization of the bank the certificate hereby surrendered for a reissue is to be returned to me.
“(Signed) Mrs. E. H. Marshall.”
This instrument was executed on July 21, 1924, and accordingly new certificates of deposit bearing that date were issued to plaintiff, and the bank reopened for business. Its financial infirmities, however, were too serious and it again closed its doors on August 19, 1925. Since that time its affairs have been wound up and the corporation dissolved. The aggregate of dividends which it paid to plaintiff and similar creditors was 23 per cent of its liabilities.
During the last period when the bank was being operated, the certificates of deposit which plaintiff had agreed to accept in order to permit the bank to reopen were surrendered and new certificates from time to time were issued therefor. When the bank permanently closed on August 19, 1925, the certificates of deposit which she held were dated July 21, 1925, but these merely evidenced the bank’s prior indebtedness to plaintiff as stated above.
In this action plaintiff undertook to formulate three causes of action based on the balances due her on these certificates of deposit, and a fourth cause of action for a balance of $201.33 in her checking account for moneys which she had actually deposited in the bank between July 21, 1924, and August 19, 1925.
On issues joined the cause was tried at length, and the facts summarized as above with many less important details were developed. The jury returned a verdict for plaintiff on her fourth cause of action; her motion for a new trial was overruled and judgment was entered accordingly.
Plaintiff appeals, relying on the letter of the statute governing the liability of bank directors and relying on the literal recitals of her certificates of deposit. The substance of the statute, which has often been construed by this court, is that where bank directors give their assent to the receiving of deposits when they know or with diligence could know that their bank is insolvent or in a failing condition they are personally liable to the depositors for whatever loss they sustain by depositing their moneys in such an unworthy institution. (R. S. 9-163; Ramsay Petroleum, Co. v. Adams, 119 Kan. 844, 241 Pac. 433; Ramsey v. Adams, 122 Kan. 675, 253 Pac. 416; 277 U. S. 88, 72 L. Ed. 796.)
The basis of the statutory liability imposed on bank directors is their fraudulent or negligent supervision of the bank’s business. (Barret, Receiver, v. Skalsky, 118 Kan. 162, 164, 233 Pac. 1043.) Its underlying purpose is to insure constant and vigilant watchfulness on the part of directors over conduct of the bank’s affairs. (Ramsey v. Bank Commissioner, 115 Kan. 212, 214, 222 Pac. 117.) In Forbes v. Mohr, 69 Kan. 342, 346, 76 Pac. 827, in discussing the purpose of this statute, the court said:
“It was evidently the thought and purpose of the legislature to guard depositors from loss through the incompeteney or criminality of officers chosen by directors by imposing upon such directors the burden of giving watchful care to the affairs of the bank, and by adding to their duties something more than care in the selection of president and cashier, to wit, the duty of keeping watch of their conduct by making an examination into the affairs of the bank with reasonable frequency and thoroughness.”
Applying the statute to the matter at hand, it will readily be seen that the judgment in plaintiff’s behalf on her fourth cause of action was properly rendered by the trial court. She apparently made the small deposits from time to time, aggregating $201.33, in reliance that the defendants, as directors of the bank, were vigilantly supervising its affairs and taking the proper precautions to see that the bank was not slipping once more into the slough of insolvency. But on plaintiff’s first three causes of action, she made no deposits of money in the bank in reliance on the vigilance of the bank directors. While her certificates of deposit literally did recite that she had made such deposits on July 21, 1925, yet the fact was otherwise. These certificates were no more than convenient memoranda of certain indebtedness which existed between plaintiff and the bank when its functions were suspended in 1923, and that indebtedness was the subject of negotiations between plaintiff and the bank at that time. It was because of her written promise (and of others in like situation) that she would accept ostensible certificates of deposit and extend credit to the bank for one and two years that the defendant directors gave their sanction to the reopening of the bank on July 21, 1924. It was shown beyond dispute that the certificates were not in fact what they purported.to be; and since no one was concerned except the original parties thereto, their essential character could be established, and the maker (the bank) was not es-topped by the recitals on the face of the certificates.
In State Bank v. Bank Commissioner, 110 Kan. 520, 204 Pac. 709, it was held that instruments purporting to be certificates of deposit issued by a bank, but whose recitals were in fact untrue, were no more than memoranda of the bank’s indebtedness for a loan of funds procured from the designated payee of the certificates.
In National Bank v. Bank Commissioner, 110 Kan. 380, 390, 204 Pac. 715, it was said:
“When the primary purpose is not to establish the relation of debtor and creditor between bank and depositor, but to discharge some matured obligation of the bank by giving a time certificate of deposit, the certificate is no more than a bill payable.”
To the like effect was Bank v. Bank Commissioner, 114 Kan. 1, 216 Pac. 1093.
With these pertinent views of the law governing the status of plaintiff’s claim under her first, second and third causes of action, the errors which plaintiff complains of are readily disposed of. Whatever abstract merit there may be to her criticism of the trial court’s instructions, their possible defects did not prevent her from recovering on her fourth cause of action, which was the only one on which she could properly have recovered under the evidence in this case. So it is of no present consequence whether or not the instructions properly defined the scope of a bank director’s duty and liability touching the reception of deposits. There is some merit in the criticism of the fourteenth instruction touching the significance which the jury should give to defendant’s exhibit 1. Being in writing, its significance was for the court itself and not for the jury. (Smith v. Paper Co., 104 Kan. 732, 180 Pac. 983; Bishop & Babcock Sales Co. v. Brogan, 128 Kan. 779, 782, 280 Pac. 749.) Since the execution of that instrument was not disputed and not impeached for fraud or mistake, it would have been enough for the court to have made short work of plaintiff’s first, second and third causes of action by an instruction that if the jury found that the certificates sued on were mere renewals of the bank’s obligations to plaintiff which had been the subject matter of the agreement on July 21, 1924, they were not evidence of deposits received by the bank at a time when it was insolvent or in failing circumstances within the meaning of the statute so as to make the directors personally liable for the loss sustained by plaintiff, and the jury’s verdict on those three coupts should be for defendants.
However, a correct result was reached, and the soundness of the judicial process by which it was attained is not important. (Scattergood v. Martin, 57 Kan. 450, 46 Pac. 933; Quinton v. Kendall, 122 Kan. 814, 823, syl. ¶ 11, 253 Pac. 600.)
The other objections to the judgment have been duly considered, but they suggest nothing to warrant further discussion.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal by a minor, appearing by her natural guardian and next friend, from an order of the court overruling a motion to set aside a judgment in a foreclósure action because of lack of service of process, and from an order permitting the sheriff to amend his return on the summons. We pass (to be considered later herein) the question raised by appellees as to whether a general appearance was entered which cured the absence or defect of the original service.
The record to present the question sought to be raised by appellant is as follows: On December 3, 1921, Suter Brothers, a partnership, filed an action on two promissory notes which had been executed by Fred Hebert and Anita J. Hebert, his wife, and to foreclose a mortgage given to secure their payment. It appears that by the time the action was filed Anita J. Hebert had died intestate, leaving as her heirs at law her husband, Fred Hebert, and five minor children. The petition named as defendants “Fred Hebert, . . . the First National Bank of Palco, . . . Fred Hebert, husband, Rósela N. Hebert, a minor, Agnes Hebert, a minor, Philip H. Hebert, a minor, Gleva Hebert, a minor, and Eans Hebert, a minor, heirs at law of Anita J. Hebert, deceased.” The praecipe for summons requested the clerk to issue summons, directed to the sheriff, for service upon the defendants, “Fred Hebert, Rósela N. Hebert, Agnes Hebert, Philip H. Hebert, Gleva Hebert, Eans Hebert, . . .” and setting forth the indorsement to be made thereon. The clerk issued the summons to the sheriff, commanding him “to notify Fred Hebert, Philip H. Hebert, Rósela N. Hebert, Gleva Hebert, Agnes Hebert and Eans Hebert . . .” that they had been sued, etc. The return, signed by the sheriff, recites:
“. . . December 6, 1921, served the same by leaving a copy thereof duly certified with the indorsements thereon at the usual place of residence of the within-named defendants, Fred Hebert, Philip H. Hebert, Gleva Hebert, Agnes Hebert and Eans Hebert.”
The return also showed personal service on the defendant, Rósela N. Hebert. On January 4, 1922, the First National Bank of Palco filed an answer and cross petition for judgment on two notes signed by Fred Hebert and Anita J. Hebert, and to foreclose a second mortgage upon the real property described in the petition. On February 7, 1922, on plaintiff's application, the court appointed a guardian ad litem for the minor defendants. On May 1, 1922, judgment was rendered for the plaintiff, also for the First National Bank of Palco, upon their notes against the defendant Fred Hebert. The action was continued as to the other defendants. On June 1, 1922, the plaintiff and the First National Bank of Palco appeared by their attorneys, “and the defendants, the minor heirs of Anita J. Hebert, deceased, appeared not, but answer said action through their duly appointed and qualified guardian ad litem.” A.personal judgment was rendered for the plaintiff and for the bank against the minors for the sum due on the notes sued upon, and a decree was entered for the foreclosure of the mortgage. (We pause to wonder why a personal judgment was rendered against the minors on these notes.) Thereafter an order of sale was issued, the real property was sold .in conformity thereto, and was purchased by the First National Bank of Palco, and the sale was confirmed by an order of the court made on July 26, 1922. Thereafter, and in June, 1929, Agnes Hebert, a minor, by her guardian and next friend, Fred Hebert, appearing specially for the purpose of the motion only, filed her motion to set aside the judgment of foreclosure rendered in the cause, for the reason: (1) that the court had no jurisdiction to render the judgment against her because she was not at any time, or in any manner, served with summons or other process in said cause, as provided by law; (2) that neither her guardian nor her father, as her natural guardian, nor the person having the care and control of her, or with whom she lived, were made parties defendants in said action, nor was service of summons or other process served upon them, or either of them, as provided by law; (3) that she entered no appearance in said cause. On February 3, 1930, Suter Brothers filed a motion to permit and require the amendment of the sheriff’s return of service of summons in the action, for the reason that the same is incomplete and does not speak the whole truth. Both of these motions came on for hearing on May 19, 1930. Evidence was taken. The sheriff testified that he served the summonses by leaving them with one of the girls, Rósela, whom he found at home, and that he left with her six copies of the summons. The court overruled the motion to set aside the judgment and sustained plaintiff's motion to direct and permit the sheriff to amend his return, and the same was amended so as to show the personal service on Rósela N. Hebert as was shown by the original return, and as to the other Heberts the amended return reads:
“December 6, 1921, served the same by delivering a copy thereof duly certified with the indorsements thereon at the usual place of residence of the de-r fendant Fred Hebert, and one copy for himself as father of the following-named children and minors at that time living and making their home with the said defendant and father Fred Hebert, and by leaving a copy of this writ with the indorsements thereon duly certified for each minor at said place for Agnes Hebert, Philip H. Hebert, Eans Hebert and Gleva Hebert.”
The statute then in force (Gen. Stat. 1915, § 6968; Laws 1909, ch. 182, § 77, which has since been revised [see R. S. 60-408] ) read as follows:
“When the defendant is a minor, the service must be upon him and upon his guardian or father, or if neither of these can be found, then upon his mother, or the person having the care or control of the infant, or with whom he lives. If neither of these can be found, then the manner of service may be the same as in the case of adults. . . .”
It will be noted that neither the original return nor the amended return show service of summons in compliance with this statute. Under this statute it was necessary that the minor be served and that service also be had on his guardian, the father; or if neither of these could be found, upon his mother, or the person having the care or control of him, or with whom the minor lived. There is no provision in the statute for serving the minor at the usual place of such minor’s residence, unless there was a showing that the minor could not be found, and there was no recital of that fact in the return. The only one of the minors served personally was Rósela. We do not have the question before us as to whether the service on her was good. The question here is whether the service was good on Agnes, and clearly neither return showed a good service on her. While it is true a guardian ad litem was appointed for her, the appointment did not bind her in the absence of the service of process as provided by statute. (Gen. Stat. 1915, § 6922; R. S. 60-408; Martin v. Battey, 87 Kan. 582, 592, 125 Pac. 88.) It necessarily follows that the service, even under the amended return, was insufficient to give the court jurisdiction of the person of the defendant, Agnes Hebert, a minor.
Appellees raise the point that, notwithstanding the form of the motion of appellant, in which she appeared specially and raised jurisdictional questions only, she did in fact make a general appearance on the taking of evidence on these motions. At that time her counsel called the attorney of the plaintiff to the stand as a witness, and after some preliminary questions asked whether any evidence was taken in court at the time the judgment was rendered which is sought to be set aside. The abstract is confusing as to whether the question was answered. It was objected to. Appellant says it was answered “No” before the objection was made. When the question was asked, and perhaps had been answered, the following took place:
Counsel for the Bank: “Just a moment. The defendant First National Bank objects to the question as calling for immaterial evidence, seeking to contradict written records of this court, calling for secondary evidence, seeking to modify the records of the court.”
Counsel for Appellant : “The court can always contradict the record when it comes to setting aside its judgment because it is void.”
THIS Court: “The journal entry of judgment shows there was evidence offered, does it?”
Counsel for the Bank: “There was evidence offered and it so recited.”
The Court: “Let’s see the journal entry.”
Counsel for Appellant: “There isn’t any question about that, your honor; that journal entry recites the files and other evidence were introduced.”
The Court: "Do you contend there is any question about the meaning of the journal entry or the language of it?”
Counsel for Appellant: “I contend that we can show that this foreclosure was just like a number of other foreclosures. They just take judgment without presenting any evidence to the court.
The Court: “The objection is sustained.”
Counsel for Appellant: “Now, we want to make this offer. We offer to show by F. E. Young that at the time the judgment was taken in this case no evidence was introduced; that it was called a judgment rendered; that the note was not canceled at the time judgment was rendered, but several days thereafter. That is all.”
Counsel for the Bank: “Same objection we made before.”
The Court: “And the court sustained the objection to the offer.”
Appellees argue that by asking this question, and by her efforts to offer testimony that the judgment sought to be set aside was void because no evidence was offered and there was no real trial, the appellant entered a voluntary appearance in the case which cured any lack of or defect in the service of the original summons. It has been repeatedly held that when one contends the court had no jurisdiction over his person because of a lack of or defect in the service of process, and seeks to set aside a judgment or quash the service for this reason, his motion or application for that purpose must be confined to the jurisdictional questions. If in the motion he raises questions which go to the merits of the action he recognizes the jurisdiction of the court over his person and makes a general appearance which cures defects or absence of service of process. (Meixell v. Kirkpatrick, 29 Kan. 679; Life Association v. Lemke, 40 Kan. 142, 19 Pac. 337; Investment Co. v. Cornell, 60 Kan. 282, 56 Pac. 475; Baker v. Land Company, 62 Kan. 79, 61 Pac. 412; Abercrombie v. Abercrombie, 64 Kan. 29, 67 Pac. 539; Jones v. Standiferd, 69 Kan. 513, 77 Pac. 271; Bank v. Courter, 97 Kan. 178, 155 Pac. 27; Dye v. Railroad Co., 101 Kan. 666, 168 Pac. 1087; Marler v. Mortgage Co., 111 Kan. 488, 207 Pac. 823; Butter Tub Co. v. National Bank, 115 Kan. 63, 222 Pac. 754; King v. Ingels, 121 Kan. 790, 250 Pac. 306.)
In Burdette v. Corgan, 26 Kan. 102, the rule was held applicable to a minor appearing by his guardian or next friend seeking affirmative relief in an action or proceeding. The rule was applied in Barnett v. Insurance Co., 78 Kan. 630, 97 Pac. 962, where, in some respects, the facts are much like the case at bar. In both of the cases last mentioned, however, the motion which was filed by the minor appearing by his next friend or guardian urged nonjurisdictional grounds for setting aside the judgment as well as jurisdictional grounds. The motion filed in this case raised only jurisdictional grounds. If the rule contended for by appellees is applied here, that could be done for the sole reason that appellant’s counsel produced a witness by whom he sought to show evidence had not been introduced or considered by the court at the time of taking the judgment sought to be set aside.' There is nothing in this record to indicate that the trial court, in overruling appellant’s motion to set aside the judgment, did so for the reason that the appellant had, in the manner above suggested, entered a general appearance in the case. That point was not suggested to the court by counsel for appellees, or by anyone. The objection to the question made by counsel for appellees was that the question called “for immaterial evidence, seeking to contradict records of this court, calling for secondary evidence.” This objection-was, of course, good, for there was no motion then pending in court and being heard to which this evidence was material. The journal entry of the court’s ruling upon the motion of appellant to have the judgment vacated and to have the sheriff amend his return makes no reference to the point now urged by appellees. It was quite apparent that counsel for appellees and the court entertained the view that the amended sheriff’s return showed a good service of summons upon appellant. As we have heretofore seen, that view is incorrect. It is the general rule that a guardian or next friend of an infant appearing for him in court cannot waive or admit away the substantial rights of the infant, or consent to anything which may be prejudicial to him, even by neglect or omission. (31 C. J. 1143; see, also, Railway Co. v. Lasca, 79 Kan. 311, 99 Pac. 616; Leslie v. Manufacturing Co., 102 Kan. 159, 169 Pac. 193.) In view of this general doctrine we would deem it highly technical to hold that counsel for the minor made a general appearance for her by the question propounded as above referred to, particularly in view of the fact that such holding would be prejudicial to the rights of the minor, and in view of the fact that it is quite clear from the record that no question of that kind was ever submitted to or passed upon by the trial court.
The result is that the judgment of the court denying appellant’s motion to set aside the judgment must be reversed for further appropriate proceedings.
It is so ordered.
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The opinion of the court was delivered by
Hutchison, J.:
A petition for a rehearing and also a motion to clarify the opinion have been filed by the appellee. The appellants have filed answers to both petition and motion, and these papers show such a divergence of views as to the application of the rulings to the property of both estates, and the distribution thereof, that it seems advisable to restate more specifically and definitely what was intended and thought to have been fully covered in the opinion rendered May 9,1931, and reported in 133 Kan. 112.
The main controversy in the case was with reference to the right and power of Mrs. Robinson to make gifts to charitable and religious purposes by her will from the estate of her brother, Mr. Sutton. In the opinion this court approved the finding of the trial court as to the extent and amount of property in her estate traceable to the Sutton estate as being $15,300 and a one-half interest in a residence property in the city of Beloit. It was held that Mrs. Rob inson did not have power and authority under the will of her brother to make gifts to charitable or religious purposes by her will of any of her brother’s property. It was further held that the specific legacies given her niece and nephew of $10,000 and $3,000 respectively in her will could properly be considered as a designation of proportionate shares of ten to three to the extent of $13,000 in the Sutton estate.
The will gave $10,000 to charitable and religious purposes, $1,000 of which was in telephone stock found to belong to her; $1,500 of the remaining $9,000 so bequeathed to charitable and. religious purposes had been paid before her death. She also bequeathed to other relatives besides the niece and nephew the total sum of $5,000, making in all, aside from .the telephone stock and the $13,000 to the niece and nephew, a total of $15,000.
Her own estate was found by the trial court to be the same in amount as that of her brother, $15,300, plus a half interest in the residence and the telephone stock and a few other contingent items. So when she attempted to give to the niece and nephew $13,000 and $15,000 to charitable and religious purposes she was planning to thus dispose of both the property belonging to herself and that which was traceable to her brother’s estate.
It was said in the opinion:
“It was the evident intention of Mrs. Robinson in making her will to regard the property she had received from her brother as her own, and except for the bequests to her niece and nephew, appellants herein, she apparently undertook to dispose of the property received from her brother’s estate just as she did with her own property. To the niece and nephew named in the Sutton will she gave $10,000 and $3,000 respectively, and. also made them and four other relatives residuary legatees. The bequests contained in her will amounted to considerably more than her own property separate and apart from that traceable to the Sutton estate.” (p. 114.)
It is now contended by the appellants, since it has been held that Mrs. Robinson had no right to dispose of the Sutton property by her will, that the $13,000, bequests to the niece and nephew, must be considered as intended for them out of her own estate, notwithstanding the $10,000 and $3,000 items have been held by this court to be a designation of the proportionate shares of the niece and nephew in the Sutton estate to the extent -of $13,000. To this we cannot agree. No doubt she thought she was by those bequests giving them part of her own money and part of her brothers’, just the same as she evidently intended in making the gifts to charitable and religious purposes. But her intentions have been overturned by the ruling of this court as to the religious and charitable gifts, and likewise a construction has been placed by this court on the bequests to the niece and nephew as being necessarily limited to the Sutton property and not an additional bequest out of Mrs. Robinson’s estate. These bequests cannot properly serve two purposes at one and the same time, and our holding that the purpose is a proportionate designation out of the Sutton estate absolutely prevents the additional purpose. This does not affect nor in any way interfere with the niece and nephew being residuary legatees with the four others so designated.
The executor is authorized to proceed with the disposition and distribution of the property of both estates in accordance with the views herein expressed.
The petition for rehearing is denied.
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The opinion of the court was delivered by
Allegrucci, J.:
Daniel Hanson was found guilty by a district magistrate judge of driving under the influence of alcohol in violation of K.S.A. 8-1567(a). Hanson appealed to a district judge, who granted Hanson s motion to arrest the judgment and dismissed the case without prejudice. When the State refiled the charge, defendant filed a motion to dismiss based on double jeopardy. The motion was denied and defendant was convicted by the district judge. Hanson appealed. The Court of Appeals affirmed in a split, unpublished opinion. This court granted Hanson’s petition for review.
The sole issue on appeal is whether Hanson’s double jeopardy rights were violated by the subsequent prosecution.
Hanson accepts the facts stated by the Court of Appeals as accurate and complete. The following statement of facts is drawn from the Court of Appeals’ majority and dissenting opinions:
On May 7, 2002, Hanson was charged with one count of DUI with alternative methods of committing the offense that corresponded to K.S.A. 8-1567(a)(l) and (2). The first complaint states:
“That on or about April 7, 2002, the above named defendant, within the above named County in the State of Kansas, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully and intentionally operate or attempt to operate a motor vehicle while under the influence of alcohol, or while sustaining an alcohol concentration of at least 0.08 grams of alcohol per 210 liters of breath/100 milliliters of blood at the time or within two hours thereafter.”
The case was heard at a bench trial before a district magistrate judge. Although the State presented evidence with respect to Hanson’s prosecution under the alcohol concentration alternatives, the State conceded before submitting its case to the court that it could not show that the alcohol concentration was measured within 2 hours of the time Hanson drove his vehicle. Thus, the State proceeded solely on the alternative that defendant was under the influence of alcohol. The district magistrate judge found Hanson guilty of driving under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle, in violation of K.S.A. 8-1567(a)(3).
Hanson filed a motion to arrest judgment on the ground that the complaint was jurisdictionally defective for failing to charge that he was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle. The district magistrate judge denied the motion. Hanson appealed to a district judge. The district judge reversed the district magistrate judge’s decision on the motion to arrest judgment, granting it on the ground that the complaint failed to allege an essential element of the crime — that the influence of alcohol was to a degree that rendered him incapable of safely driving a vehicle. The district judge dismissed the case without prejudice.
The State filed a second complaint against Hanson. It differed from die first complaint in that it charged no alcohol concentration alternative and it included all essential elements of the driving under the influence alternative. It states:
“That on or about April 7, 2002, the above named defendant, within the named County in the State of Kansas, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully . . . operated or attempted to operate a motor vehicle while under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle, contrary to K.S.A. 8-1567(a)(3).”
Hanson filed a motion to dismiss on the ground that the second prosecution would constitute double jeopardy. The district judge denied the motion on the ground that the district magistrate judge never had jurisdiction of the first prosecution. The district judge reasoned that double jeopardy is not a bar to a second criminal prosecution based on the same criminal act that resulted in a previous conviction when the judgment entered on the previous conviction has been arrested because the district court (the district magistrate judge presiding) lacked jurisdiction. The district judge held the prosecution of Hanson on the refiled charge was not for a different crime and consequently was not barred. The parties stipulated to the evidence presented in the first trial, and the district judge found Hanson guilty of driving under the influence of alcohol to the extent he was incapable of safely driving a vehicle. The district judge sentenced him to 12 months’ supervised probation after serving 5 consecutive days in the county jail.
Hanson appealed. The Court of Appeals in a split decision affirmed his conviction. The majority found that K.S.A. 21-3108(4)(a) and (c) controlled. The statute, which codifies double jeopardy protection, provides:
“(4) A prosecution is not barred under this section:
(a) By a former prosecution before a court which lacked jurisdiction over the defendant or the offense; or
(c) If subsequent proceedings resulted in the invalidation, setting aside, reversal or vacating of the conviction, unless the defendant was adjudged not guilty.”
The majority reasoned that the first prosecution was held in a court that lacked jurisdiction over the charge so that the subsequent prosecution was not barred. With regard to Hanson’s claim that he had been acquitted of the 8-1567(a)(1) and (2) alternative methods of committing the DUI offense, the majority reasoned that the alternative methods had been dismissed by the State, as allowed by 8-1567(p) so that the case was submitted to the court only under 8-1567(a)(3). Thus, the majority rejected Hanson’s characterization of the dismissals as acquittals. The dissenting judge reasoned that, because only a part of the first complaint was defective, the court in which the first prosecution was held had jurisdiction over the nondefective alcohol concentration alternative methods of committing the DUI offense and that jeopardy had attached. Thus, the dissenting judge would find that Hanson’s subsequent prosecution was barred.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights protect against a second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same offense. State v. Gulledge, 257 Kan. 915, 920, 896 P.2d 378 (1995). As noted above, K.S.A. 21-3108 codifies this double jeopardy protection.
Review of whether the district court in convicting Hanson of DUI violated his rights under the Double Jeopardy Clause is a question of law over which this court has unlimited jurisdiction. See City of Salina v. Amador, 279 Kan. 266, 106 P.3d 1139 (2005).
In Hanson’s view of the first prosecution, the State’s presenting evidence but then not proceeding on the alcohol concentration alternatives amounted to acquittals on those alternatives. The Court of Appeals’ majority cited K.S.A. 8-1567(p) in rejecting defendant’s position. The statute provides: “The alternatives set out in subsections (a)(1), (a)(2) and (a)(3) may be pleaded in the alter native, and the state, city or county, but shall not be required to, may elect one or two of the three prior to submission of the case to the fact finder.” Thus, the State’s election was statutorily authorized, and by including the alcohol concentration alternatives in the complaint and presenting evidence on them, it did not constitute acquittals when the State submitted the case only on (a)(3).
In the dissenting judge’s reasoning, it did not matter whether defendant was acquitted of the alternative methods of committing the DUI offense. The dissenting judge would have found that the district magistrate judge exercised jurisdiction over the case in hearing evidence of the alternative methods and that exercise of jurisdiction barred the subsequent prosecution.
Neither the majority nor the dissenting opinions considered the effect of Hanson’s appeal to the district judge or the application of K.S.A. 2001 Supp. 22-3609a, which governs appeals from district magistrate judges. The statute provides in part:
“(1) A defendant shall have the right to appeal from any judgment of a district magistrate judge. . . . The appeal shall stay all further proceedings upon the judgment appealed from.
“(3) . . . The case shall be tried de novo before the assigned district judge.”
In Amador, the court considered whether defendant’s double jeopardy rights were violated by a subsequent prosecution of the same charges in municipal court following the district court’s dismissal of his appeal without prejudice. Amador was convicted in municipal court of battery and criminal damage to property. He appealed his convictions to the district court, which dismissed the appeal without prejudice. The City refiled the charges in municipal court, and Amador was convicted again. When he appealed the convictions, the district court dismissed all charges on the basis of double jeopardy. The Court of Appeals reversed, City of Salina v. Amador, 32 Kan. App. 2d 548, 85 P.3d 724 (2004), and this court affirmed the Court of Appeals.
The court first considered whether Amador’s appeal of his municipal court convictions to the district court vacated his municipal court convictions and concluded that it did. Cases involving appeals from district magistrate judges to district judges were among those judged by the court to be persuasive:
“In State v. Burkett, 231 Kan. 686, 687, 648 P.2d 716 (1982), this court considered whether the State could refile a felony charge in the de novo appeal proceeding to the district court that it had agreed to dismiss through plea bargaining in the proceedings before the magistrate judge. In ultimately concluding that the State was not precluded from asserting the original charges, we reasoned in part:
‘The quoted statute, K.S.A. 22-3609a [providing for an appeal from a judgment of a magistrate judge], gives defendant this privilege as a matter of right. The effect of the appeal is to stay all further proceedings before the district magistrate judge. The case is to be tried de novo before the district judge or an associate district judge. The pleas entered before the district magistrate judge are automatically vacated; otherwise there would be no reason for a trial. The proceedings start afresh; arraignment must be held; new pleas must be entered; a jury may be demanded; and if conviction results, the judge must direct the disposition, whether by fine, sentence, suspension of sentence, probation or otherwise. The plea, conviction and disposition had before the district magistrate judge are subject to automatic vacation by the appeal; none remain.’ (Emphasis added.) 231 Kan. at 690.
“In State v. Rose, 29 Kan. App. 2d 355, 28 P.3d 431, rev. denied 272 Kan. 1422 (2001), the magistrate judge suppressed the defendant’s breath alcohol test at the hearing on his driving under the influence charge, and the State did not appeal this ruling. Nevertheless, the defendant was convicted and appealed his convictions to the district court. In a trial de novo, the district court admitted the results of the breath alcohol test and the defendant was again convicted. The defendant appealed, arguing that the State was bound by the magistrate’s suppression order because it did not appeal the ruling pursuant to K.S.A. 2000 Supp. 22-3602 and K.S.A. 22-3603.
“The Court of Appeals found that the right of appeal granted the prosecution under these statutes would be an important right if the suppressed evidence were essential to the case, however, when the evidence was not crucial, the prosecution could elect to proceed to trial without the evidence. The court reasoned that the fact ‘the State could have taken an interlocutory appeal from the suppression order of the magistrate judge is of no consequence under the facts of this case.’ 29 Kan. App. 2d at 359. The court found the appeal ‘automatically vacated all orders entered by the magistrate judge,’ and the district court had to determine both the facts and tire law in a de novo trial. 29 Kan. App. 2d at 360.
“Burkett and Rose are obviously distinguishable from this case in that they dealt with what is now K.S.A. 2003 Supp. 22-3609a, appeals from proceedings before a magistrate judge, and this case deals with K.S.A. 2003 Supp. 22-3609, appeals from the municipal court. However, we have deemed the reasoning in Burkett regarding whether arraignment is necessary on appeal from the magistrate judge to be ‘instructive’ in considering whether arraignment was necessary upon appeal from a municipal court conviction. See City of Wichita v. Maddox, 271 Kan. 445, 452, 24 P.3d 71 (2001); see also City of Halstead, v. Mayfield, 19 Kan. App. 2d 186, 865 P.2d 222 (1993) (applying rationale used in determining when a judgment is appealable from magistrate judge to appeals from municipal court).
“Further support for this conclusion is found in State v. Legero, 278 Kan. 109, 91 P.3d 1216 (2004), in which the majority concluded that a probation revocation order made by a magistrate judge was not appealable to the district court under K.S.A. 2003 Supp. 22-3609a. In so finding, it cited with approval a Court of Appeals case which had found that an appeal to the district court from a municipal court order revoking probation was not authorized under K.S.A. 2003 Supp. 22-3609(1). Relevant to this case, we discussed the effect of appeals under both statutes;
‘The appeal 22-3609a affords a defendant from a judgment does not operate as a review of the propriety of any judicial determination. Rather, the case is transferred to the district court where it will be tried de novo and guilt or innocence determined anew in the district court. On appeal, the case becomes a district court case as if filed there originally. The proceedings in the magistrate court have no bearing on the case as it comes before the district court. Unless the appeal is dismissed, the proceedings held in the magistrate court leave no footprint.
‘This procedure set forth in K.S.A. 2003 Supp. 22-3609a is virtually identical to the appeal afforded to a defendant who has been convicted in municipal court. . . .
‘The difference in the wording of K.S.A. 2003 Supp. 22-3609, “from any judgment of a municipal court which adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas,” and the “any judgment” language of 22-3609a applicable herein was held to be a distinction without a difference in State v. Remlinger, 266 Kan. [103, 107, 968 P.2d 671 (1988)]. The procedures set forth in both statutes are virtual mirror images of each other. There is no appellate review of any prior order or judgment. For all practical purposes, the prosecution starts over.’ (Emphasis added.) 278 Kan. at 114.
“While the dissenting opinion disagreed regarding the right to an appeal under K.S.A. 2003 Supp. 22-3609a, it did not take issue with the practical effect of what happens when convictions are appealed to district court for a trial de novo under two similar statutes. Thus, Legero provides further support for the use of cases concerning K.S.A. 2003 Supp. 22-3609a as persuasive authority in this case.” 279 Kan. at 270-72.
In Amador, the court also looked at a case involving the historical appeal process from a justice of the peace to the district court:
“In State v. Curtis, 29 Kan. 384 (1883), the defendant appealed his misdemeanor conviction before a justice of the peace to the district court for trial. In the district court, instead of asking leave to file an amended complaint, the State filed an information for the same offense and moved to dismiss the original appeal. The defendant argued that compelling him to go to trial on the second information, which was filed when a conviction for the same offense already existed, placed him in jeopardy for a second time. This court rejected that argument, reasoning in relevant part:
‘It is insisted that the appeal from the judgment of the justice did not vacate such judgment, but only suspended it, and the case of State v. Volmer, 6 Kan. “379, is cited. But there is this difference between that case and the one at bar: there the appeal was from the district court to this [court] for review, and here from the justice to the district court for trial. Yet even in that case it was held that the appeal suspended the judgment for all purposes. A fortiori, the appeal in this case was equally potent. Further, while doubtless the appellant may dismiss his appeal, and thus reinstate and make final the judgment against him, yet the appeal conditionally vacates the judgment. [Citations omitted.] There is after the perfecting of the appeal only a pending prosecution. The case stands in the district court for trial as an original prosecution there. The state may dismiss the prosecution, and then there is no judgment or case in any court.’ (Emphasis added.) 29 Kan. at 386.” 279 Kan. at 273.
The Amador court found
“the Curtis court’s characterization of tire appeal as conditionally vacating the judgment the best description of the effect of appealing a municipal court conviction to the district court. This is because the defendant’s voluntary dismissal of the appeal to the district court results in tire reinstatement of the municipal court judgment. As an appeal from a municipal court conviction calls for a trial de novo, the appealed conviction before the municipal court must be conditionally vacated. If the defendant does not dismiss his or her appeal, and the case is dismissed by the district court with or without prejudice, or the case is actually heard de novo before the district court, the municipal court conviction appealed from is vacated.
“In this case, the defendant did not dismiss his first appeal and the district court dismissed the case without prejudice prior to the commencement of a trial de novo. The phrase ‘without prejudice’ generally means ‘ “ ‘there is no decision of the controversy on its merits, and leaves the whole subject in litigation as much open to another application as though no suit had ever been brought.’ ” ’ State v. Heigele, 14 Kan. App. 2d 286, 288, 789 P.2d 218 (1990). The defendant’s and the district court’s actions thus had the effect of wiping the slate clean of the judgment in municipal court .... We conclude that the appeal for trial de novo under K.S.A. 2003 Supp. 22-3609a, which was not dismissed by the defendant, coupled with the district court’s dismissal of the case without prejudice, had the effect of vacating the municipal court conviction.” 279 Kan. at 274.
In the present case, Hanson was convicted by the district magistrate judge. He appealed to a district judge and filed a motion to arrest the district magistrate judge’s judgment of conviction. The district judge granted Hanson’s motion and dismissed the appeal without prejudice. Hanson contends that the State was barred from refiling die DUI charge. As in Amador, however, Hanson and the district court’s actions had the effect of wiping the slate clean of the judgment in municipal court.
In Amador, in addition to the effect of the appeal to district court, the court considered and rejected defendant’s argument that jeopardy attached after his first municipal court conviction. 279 Kan. at 275-77. In the present case as well, the dissenting Court of Appeals judge and the defendant believe that jeopardy attached during the first district magistrate judge prosecution, thus prohibiting a second prosecution on the same charge before the district judge. In Amador, the defendant relied primarily on City of Bonner Springs v. Bey, 236 Kan. 661, 694 P.2d 477 (1985), and State v. Derusseau, 25 Kan. App. 2d 544, 966 P.2d 694 (1998). The court engaged in the following discussion of those cases:
“In City of Bonner Springs, the defendant appealed his municipal court conviction and the district court dismissed the action because the City failed to introduce evidence that the defendant had been notified of an outstanding warrant. On appeal by the City on a question reserved, this court found that although the district court erred in dismissing the case, jeopardy had attached pursuant to K.S.A. 21-3108 (Ensley 1981) and further proceedings against the defendantwere barred by double jeopardy. This was because the de novo case on appeal had commenced. See also City of Liberal v. Witherspoon, 28 Kan. App. 2d 649, 654, 20 P.3d 727 (2001) (double jeopardy prevented remand of case even though district court erroneously dismissed the case on appeal from municipal court for failure to present a prima facie case).
"Likewise in Derusseau, the defendant was charged with driving under the influence and attempting to elude a police officer. He was convicted of only the DUI charge and acquitted of the eluding charge following a municipal court trial. The defendant appealed the DUI conviction and the district court required him to stand trial on both charges. Upon conviction of both charges, the defendant appealed the eluding conviction, claiming it violated his double jeopardy rights. The Court of Appeals held that constitutional and statutory prohibitions against double jeopardy precluded retrial on the eluding charge upon appeal for trial de novo on the DUI charge. 25 Kan. App. 2d at 544-51.
“As noted by the Court of Appeals, City of Bonner Springs is distinguishable from this case because no evidence was presented at the district court level in the present case and the de novo trial in the district court had not commenced. See State v. Beerbower, 262 Kan. 248, Syl. ¶ 4, 936 P.2d 248 (1997) (defendant is not in jeopardy in a case tried to tire court until the court begins to hear evidence). The district court dismissed this case without prejudice prior to any evidence being heard or witnesses being sworn.
“Although Derusseau demonstrates that jeopardy can attach in municipal court, the distinguishing factor is drat the defendant in Derusseau was acquitted of the charge in municipal court, while the defendant in this case was convicted of the charges in municipal court. The defendant in tiris case is not undergoing a second prosecution for tire same offense after a conviction, because the appeal and dismissal witirout prejudice had tire effect of vacating the municipal court conviction.
“We additionally note that the United States Supreme Court has found drat a defendant who chose to be tried de novo under Massachusetts’ two-tiered system for trying minor crimes could be prosecuted a second time. The Court drew comparisons to a convicted defendant who successfully appealed and had his or her conviction reversed and remanded for new trial. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 304-05, 80 L. Ed. 2d 311, 104 S. Ct. 1805 (1984).
“Although this case is one step removed from Lydon because the City chose to prosecute the case again in municipal court after the dismissal, its reasoning can be carried through to the facts of this case. If the City was free to prosecute the defendant again in a trial de novo in district court under Lydon, it follows that a second prosecution in municipal court after a dismissal of the appeal by the district court witirout prejudice would not violate double jeopardy. A second prosecution at the district court level carries a much heavier consequence for a defendant who would not have the benefit of a de novo review on appeal, while the defendant in this case was still entitled to a de novo appeal after a second conviction in municipal court.
“The defendant’s municipal court conviction in this case was stayed by his appeal to the district court. The district court’s dismissal of the appeal without prejudice vacated all proceedings in die municipal court. Since the dismissal by the district couit was made prior to the court hearing any evidence or swearing any witnesses, jeopardy did not attach at the district court level. Thus, the defendant may be prosecuted again on the same charges in the municipal court without violating double jeopardy.” 279 Kan. at 275-77.
Our holding in Amador is controlling in the present case. Hanson’s appeal from the magistrate court conviction mandates a trial de novo in the district court, and the appealed conviction in the magistrate court must be conditionally vacated. Then when the district court dismissed Hanson’s appeal without prejudice, the magistrate court conviction was vacated, and it “leaves no foot print” in the magistrate court. Simply stated, prosecution starts over, and jeopardy does not attach. Thus, the State in refiling and prosecuting Hanson on the same charge in the district court did not violate his double jeopardy rights under the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights.
The judgment of the Court of Appeals and the district court are affirmed.
Lockett, J., Retired, assigned.
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