text
stringlengths 9
720k
| embeddings
listlengths 128
128
|
|---|---|
The opinion of'the court was delivered by
Mahan, P. J. :
This was. an.action by Duffy against the city of Leavenworth, the Rapid Transit Railway Company and the Kansas City, Wyandotte & Northwestern Railway Company to recover damage to property in the city of Leavenworth occasioned by a change in the grade of a street upon which the property abutted. The change in the grade was occasioned by the construction of the railroad of the Rapid Transit company. The Kansas City, Wyandotte & Northwestern Railway Company subsequently purchased the road so built from the Rapid Transit company. Upon the trial of the case the court sustained a demurrer to the evidence of the plaintiff, in behalf of the Northwestern company, and the trial proceeded against the city and the Rapid Transit company. There was a verdict and judgment against the city, and this proceeding in error is prosecuted by it against Duffy alone. A motion is made on his behalf to dismiss the proceeding because the other defendants are not made parties herein. There is no contribution between wrong-doers. If either of the railway companies is liable over to the city, it must be upon some separate undertaking in respect thereto which is not involved in this case. It is true, as counsel contend, it is disclosed by the pleading that, under the provisions of the ordinance granting the right of way, the Rapid Transit company obligated itself to save the city harmless from damages. However, it was not an issue in this case, and whether that company would be liable over to the city for any damage in this case under the ordinance we cannot say appears by the record. There was judgment against the city for $1000 damage to the property, and $570 interest, as specified in the verdict.
The first assignment of error is that the court permitted an attorney to appear for the plaintiff in the trial of this suit who had been attorney for the city, and had filed the answer in the cause for the city upon which the case was tried. Under the well-established rules of law, this action of the court waan irregularity which would require the court to gran anew trial, unless it was made to appear in behalf of the plaintiff that it resulted in no injury to the city. Under the provisions of the code, we are obliged to disregard any error unless it resulted in prejudice to the rights of the aggrieved party, and in such case prejudice would be presumed, in the absence of any showing to the contrary. ( Weidekind v. Water Co., 74 Cal. 386, 19 Pac. 173.) It does appear from the record, in our view of the case, that no material injury resulted therefrom to the city. It is, therefore no ground for a reversal of the judgment.
It is next contended that there was no allegation of special damages in the petition. It is sufficient to say, in answer to this, that no special damage, within the meaning of the rule of law requiring such to be specially pleaded, was sought to be recovered, nor was there any such recovery. Counsel for the city seem to confound this rule with another rule of law, that where a party seeks to recover damages for a public nuisance, he must plead and show a damage peculiar to himself and not such as is suffered generally by the • public, The facts alleged in the petition sufficiently conform to this latter rule. It is true that as an element of damage to the property the plaintiff alleged in the petition that his ownership extended to the center of the street, and that by reason of the construction of the road his ingress and egress to and from his property were cut off. But these allegations were merely incident to the general allegation that the construction of the road and the change in the grade of the street resulted in the deterioration of the value of his property. It is further contended, in the fifth assignment, that these two allegations of damage are the only allegations of damage peculiar to him occasioned by the nuisance. This is a misconstruction of the petition. As we have said above, a deterioration in the value of the property was the proper basis or we might say the entire basis of the action.
The sixth assignment of error covers the same contention.
The seventh assignment of error is likewise based upon a misconception of the allegations of the petition. One of the things occasioned by the construction of the road and the raising of the grade of the street was casting the water accumulated thereon upon the plaintiff’s property, no precautions having been taken to prevent that result.
Under the ninth assignment of error, it is contended that some of the special findings of the jury are not true; that some of the answers given thereto are evasive and unsatisfactory, and that as a whole they indicate partiality, and for that reason a new trial should be awarded. We fail to find any findings of the jury that are not sustained by some evidence, and the answers are as, clear and specific as they could be under the evidence.
The tenth assignment of error relates to the introduction of evidence. We find nothing in the record pointed out by counsel that amounts to such an erroneous admission of evidence as would warrant us in setting aside the verdict.
The eleventh assignment relates to instructions, which are not quoted, as the rules of this court require, so that we cannot say, without going into the record to hunt them out, that there was error committed in this regard, and we decline to make the examination. The same seems to apply to the twelfth and thirteenth assignments of error.
Under the fourteenth assignment of error, it is contended that the court erred in rendering judgment for interest embraced in the jury’s verdict. The rule of law is that, in actions sounding in tort, such as this, interest, as such, cannot be allowed. It is true the jury may, under some circumsbances, in actions for tort, enlarge the damages by way of allowing interest, but that is not what was done in this case. The court told the jury that, if they found for the plaintiff, they should add interest at six per cent, from the date of injury to the rendition of the verdict, and the jury, following this instruction, rendered a verdict for $1000 damages and $570 interest thereon. This cannot be sustained; however, it will not necessitate a reversal of the judgment. (1 Suth. Dam. § 347.)
The fifteenth assignment is that the court erred in giving Duffy a judgment for his costs in the case. There is no allegation in the petition that the claim was presented to the city council. It is an action against the city for an unliquidated claim, and section 129, chapter 32, of the General Statutes of 1897 (Gen. Stat. 1899, § 843), expressly., provides that no costs shall be allowed in such a case unless the claim has been presented to the council before suit. See, also, City of Atchison v. King, 9 Kan. 551. Hence it was error to adjudge costs to the plaintiff. This error can be remedied without a new trial.
The sixteenth contention is that under the pleading the city was not liable in any event. In support of this contention, counsel cite Kansas City v. Brady, 52 Kan. 297, 34 Pac. 884. The decision of that case has no application to the facts herein. The findings of the jury there were that the city was not guilty of any act of negligence contributing to the plaintiff’s injury; that the damage was occasioned by the wrongful act of a private party in constructing a sewer on its own property, over which the city had no jurisdiction. Neither is the decision of the court of appeals of Colorado in Aicher v. Denver, 10 Colo. App. 413, 52 Pac. 86, applicable to the facts of this case. The case of Eachus et al. v. Los Angeles Consolidated R. R. Co., 103 Cal. 614, 37 Pac. 750, cited in support of this contention, is directly against it. The first paragraph of the syllabus reads as follows :
“An owner of land abutting upon a street is entitled to compensation for any injury to his property which it sustains over and above that sustained in common with other abutting owners or the public in general, resulting from a change in the grade of the street, and the fact that the change in the grade is merely a change from the natural grade to the official grade is immaterial.”
This goes further than is necessary to sustain the judgment. The damages awarded the plaintiff were occasioned by a change of the official grade of the street after the plaintiff had constructed his building to conform to the established grade. We find no error requiring a reversal of the judgment. It will, however, be modified by eliminating therefrom the item of $570 interest and the item of costs adjudged to the plaintiff, and the case will be remanded to the district court with directions to make these modifications therein. In all other matters the judgment is affirmed. The costs of this court will be divided evenly between the plaintiff and defendant in error.
|
[
-16,
106,
-72,
-81,
26,
64,
2,
88,
97,
-79,
-90,
127,
-55,
-53,
5,
121,
-2,
61,
-48,
107,
68,
-121,
7,
-94,
-46,
-41,
-15,
-60,
-77,
93,
100,
-41,
76,
48,
11,
-107,
-26,
-54,
-35,
28,
-50,
4,
8,
-59,
-40,
73,
-76,
123,
6,
79,
81,
-100,
-13,
42,
24,
-45,
-23,
44,
-55,
-87,
-47,
-8,
-118,
-59,
127,
4,
33,
4,
-98,
7,
92,
46,
-104,
49,
13,
-84,
115,
-90,
-122,
-11,
101,
-39,
13,
-26,
98,
33,
21,
-17,
-4,
-68,
14,
-46,
-115,
-90,
-94,
24,
107,
97,
-106,
-35,
85,
22,
7,
-4,
-26,
4,
25,
108,
3,
-117,
-80,
-77,
-49,
52,
22,
25,
-21,
-95,
32,
112,
-50,
-96,
77,
103,
58,
27,
-97,
-100
] |
The opinion of the court was delivered by
McElroy, J.:
This action was commenced by Emma L. Tinsley in the district court of Rawlins county, on February 9, 1900, against the defendants, Pitts and Pitts, for the recovery of the amount alleged to be due upon a promissory note in the sum of $600, with interest, and for the foreclosure of a real-estate mortgage. The original petition was unsatisfactory to the defendants. Thereafter, the plaintiff filed an amended petition, to which the defendants demurred, alleging that the amended petition did not state facts sufficient to constitute a cause of action against the defendants or either of them. The court sustained the demurrer, and rendered judgment against the plaintiff for costs-of suit. To all of which the plaintiff excepted, and, as plaintiff in error, presents the record to this court and complains that the trial court erred in sustaining the defendants’ demurrer.
The only question presented by the demurrer, according to the argument of counsel, is the statute of limitations. The note and mortgage were dated June 1, 1889, due five years after date — June 1, 1894. The interest was due and payable according to ten interest coupons. The first eight of the interest notes were paid as they became due. The defendants defaulted in the payment of the interest note due December 1, 1893. Under the provisions of the principal note and mortgage, the holder might at that date, at his option, declare the entire sum due. There is no allegation in the petition that plaintiff availed herself of this option; therefore, the principal sum was not due until it matured under the terms of the note. The note would therefore be barred in five years from June 1,1894, except for the intervention of some cause to prevent the statute of limitations from applying.
The action was instituted February 9, 1900, five years, eight months and five days after the maturity of the note according to its terms. The plaintiff, for the purpose of showing that the action was not barred by the statute of limitations, averred that before maturity the note and mortgage were assigned to William T. Tinsley, her father; that he was at all times the legal owner of the note and mortgage up to the time of his death, which occurred on March 28, 1893 ; that William T. Tinsley, by his last will and testament, bequeathed to the plaintiff the note and mortgage in question ; that thereby the same passed to the plaintiff before maturity; that at the time the note and mortgage became due and a cause of action accrued thereon plaintiff was an infant, under disability, and remained an infant under disability until within less than one year prior to the date of the commencement of her action; and that the action was brought within one year from the removal of such disability of infancy.
Section 18, chapter 95, General Statutes of 1897 (Gen. Stat. 1899, § 4263), reads:
“If a person entitled to bring an action other than for the recovery of real property, except for a penalty or forfeiture, be at the time the cause of action accrued under any legal disability, every such person shall be entitled to bring such action within one year after such disability shall be removed.”
The plaintiff was the owner of the note and mortgage, according to the allegations of the amended petition, prior to and at the time of their maturity. The cause of action accrued at the time of the maturity of the note, and the plaintiff was at that time an infant; her cause of action was preserved to her by this statute for one year after the removal of the disability of infancy. The allegations of the petition bring her within the saving clause of the statute. (Ravenscraft v. Pratt, 22 Kan. 20; Scantlin v. Allison, 32 Kan. 376, 4 Pac. 618; Railway Co. v. Cooper, 57 Kan. 188, 45 Pac. 587.)
The defendants in error contend, however, that where a minor claims through an estate, so that his. rights are derivatory, and not original, he is barred when the estate is barred, and cite Morgan v. Woods, 69 Ga. 599; 13 American and English Encyclopedia of Law, 740. Doubtless this contention is correct where the cause of action is derivatory and not original. In the case at bar, however, the minor did not derive her cause of action from the estate, but she inherited the evidence of the indebtedness. The cause of action had not yet arisen; it did not accrue until the maturity of the note, which, according to the allegations of the petition, was long after she became the owner thereof. Of course, if the statute of limitations once starts to run, it is not interrupted by disability. In this case, however, the statute of limitations could not begin to run until the maturity of the note. The court erred in sustaining the demurrer. The amended petition states a cause of action. The judgment of the trial court is reversed, and the cause remanded with direction to the trial court to overrule the demurrer, and for further proceedings in accordance with the opinion herein expressed.
|
[
-14,
108,
-76,
-68,
-118,
-32,
-87,
-104,
74,
97,
-80,
83,
-21,
-58,
20,
97,
103,
73,
69,
104,
103,
-77,
19,
96,
66,
-13,
-11,
85,
-79,
92,
-12,
-41,
12,
48,
-54,
-43,
70,
-30,
-57,
80,
14,
47,
9,
-28,
-39,
0,
48,
123,
100,
76,
49,
46,
-29,
47,
60,
75,
105,
41,
-53,
-67,
-40,
-71,
-113,
-115,
125,
19,
-111,
21,
-106,
71,
106,
10,
-112,
53,
-128,
-24,
114,
-74,
-122,
116,
65,
-69,
12,
102,
98,
32,
101,
-19,
-104,
-100,
38,
-9,
-67,
-90,
-110,
72,
43,
32,
-66,
-99,
116,
20,
-57,
-2,
-26,
-124,
28,
108,
5,
-50,
-42,
-109,
31,
48,
-102,
3,
-26,
-77,
-96,
117,
-49,
-32,
92,
102,
57,
-101,
-114,
-8
] |
The opinion of the court was delivered by
Mahan, P. J. :
The question involved is, Does the petition state a cause of action in favor of Brown, as receiver, against Sims? "VVe are of the opinion that it does not. Counsel argue a number of questions, and among others the constitutionality of section 55 of chapter 47, Laws of 1897 (Gen. Stat. 1897, ch. 18, § 51; Gen. Stat. 1899, § 461).
On the part of the plaintiff in error, it is claimed that this section is unconstitutional, because it impairs the obligation of a contract right between him and the stockholders.
Upon the part of the defendant in error, it is said that there is but one question in the case, and that-is, Who is the proper party to enforce this liability of the stockholders? If a creditor of the bank, then the order of injunction should have been refused. If the receiver, then the court properly ruled, allowing the injunction complained of. We cannot view the case in this light. The statute gives the creditor the right to sue. This right has not been taken away from him. Section 55 makes it the duty of the receiver, after the expiration of one year from the closing of the bank, if it appears to him that the assets of the bank are insufficient to pay its debts, to institute proceedings in the name of the bank for the collection of the liability of the stockholders. The latter part of the section limits the right of the creditor to enforce individual liability under the old statute, in that it says : “No action by any creditor against any stockholder of such bank for the recovery of such liability shall be maintained, unless it shall appear to the satisfaction of the court that the receiver has failed to commence action as herein provided.” The action commenced by the creditor Sims does not affect the right of the receiver in any manner. If the stockholder fails to protect himself by making proper defense against the creditor’s action, he alone must suffer and not the receiver. If the receiver fails to bring the suit as provided under the statute, the creditor may maintain his suit. It is not the business of the receiver to defend any of these suits, but to prosecute his own. The question of the constitutionality of the act does not arise in this proceeding, because the receiver has shown no right, no cause of action, against Sims under which it can be raised or decided. Equity jurisdiction, to obviate the bringing of a multiplicity of suits, contemplates bringing the parties in interest before the court for the final determination of their rights, and not simply enjoining one from prosecuting a right which the statute gives him, at the suit of another having another right respecting the same subject-matter, and that is all the plaintiff asks by his petition. The injunction was auxiliary. The receiver simply asks the court to stop the creditor. Now, if there were a number of suits brought respecting these various liabilities in which the receiver had appeared or was a party and in which there was a controversy between the receiver and creditors as to who had the paramount right, or if it were even necessary that the receiver should appear in those suits of the creditor to defend his rights, he might, by a petition in the nature of a bill in equity, under the old practice, determine the whole controversy in one suit. Wherever, under the statute, he has instituted suit in advance of creditors there is no doubt of his priority of right, and this is the case before us. He is in no danger of losing any asset of the bank by Sims’s actions. If by his failure to begin actions against stockholders he loses his priority, that would not afford him any cause of action against a creditor.
It is suggested further by the defendant in error, in the brief, that it appears upon the face of the record that Sims’s action against the stockholders is barred by the statute of limitations, and therefore the injunction ought to be permitted to stand, The plea of the statute of limitations is a privilege of the stockholder in such a case, and he may waive it. It is .not for the receiver either to plead or waive the plea of the statute.
The court erred in overruling the demurrer to the plaintiff’s petition. The judgment is reversed, and the cause remanded with directions, to sustain the demurrer to the petition.
|
[
-80,
124,
88,
-68,
10,
96,
42,
-102,
61,
-16,
-91,
-13,
105,
-62,
20,
101,
-11,
41,
-47,
106,
71,
-73,
7,
-55,
-46,
-109,
-45,
-35,
-80,
91,
102,
-33,
76,
48,
-62,
-43,
-26,
-86,
-59,
-98,
-114,
37,
56,
-28,
-39,
88,
48,
42,
84,
79,
17,
-1,
-29,
46,
25,
-54,
105,
40,
121,
56,
-48,
-80,
-113,
-115,
117,
1,
49,
37,
-100,
39,
120,
46,
16,
56,
1,
-24,
122,
-74,
-126,
-12,
43,
-103,
9,
98,
102,
-125,
97,
-19,
-40,
-72,
46,
-1,
-113,
-122,
-13,
89,
9,
8,
-73,
-99,
108,
5,
-122,
-12,
-22,
-100,
28,
108,
7,
-117,
-106,
-73,
-49,
-10,
-102,
-93,
-10,
19,
48,
113,
-50,
-88,
93,
71,
91,
83,
-114,
-36
] |
The opinion of the court was delivered by
Milton, J.:
This action involves the validity of two chattel mortgages, executed by Mrs. Alma Patterson and owned by defendant in error, who as plaintiff herein replevied the mortgaged goods, a florist’s stock, from the plaintiff in error. The latter had seized the same under an execution based upon a deficiency judgment in a foreclosure action wherein the Phoenix Mutual Life Insurance Company was plaintiff, and Mrs. Patterson and her husband were defendants. Mrs. Patterson was the principal witness for the plaintiff below, and her testimony tended in some degree to prove that she was at the date of the levy under the execution, and for several months prior thereto had been, in possession of the mortgaged property, as the agent of the mortgagee. In his answer, the defendant claimed that the mortgagor in no way accounted to the mortgagee for any of the proceeds of the business, and on cross-examination of Mrs. Patterson, his counsel asked her whether the mortgagee had ever told her how much he thought she ought to take out of the proceeds of the business for her compensation as agent. She answered that she did not remember having had any conversation with the mortgagee about the matter. Afterward Mrs. Patterson was called as a witness on behalf of the defendant, and numerous questions were asked of her by the defendant’s counsel concerning the expenses incident to her business as a florist during the time she claimed to have acted as agent of the mortgagee. .She stated that she had entered on the account-books which she kept allowances to herself as salary at the rate of seventy-five dollars per month, and that after paying the other expenses of conducting the business there were not sufficient funds to pay her salary at that rate. On cross-examination, she was asked the following question: * ‘ What was a reasonable and fair value per month for your services ?” The question was objected to as incompetent, irrelevant, and immaterial, and the objection was overruled. The witness answered : “I feel that sixty dollars per month for my labor was as small as I would be willing to work,‘and as small as I would have to work if I was employed by any one else.” She further testified that she had paid the interest on the debt to the mortgagee. Counsel for plaintiff in error contends that the court erred in overruling the objection to the above question and in permitting it to be answered. Under the circumstances we think the question proper cross-examination.
Complaint is also made that the court erred in sustaining an objection to a question asked by the defendant of the plaintiff when he was testifying in his own behalf. We find that the witness had already testified favorably to the defendant’s theory of the case respecting the same facts inquired about in the question to which the objection was sustained. The error, if any, was therefore not important.
The instructions given were not excepted to, and the only exception taken to the court’s refusal to give the seven instructions asked for by the defendant below reads: “The foregoing instructions refused, and excepted to by the defendant.” This exception is too general. Similar exceptions were held insufficient by the-supreme court in Bard v. Elston, 31 Kan. 274, 1 Pac. 565, and in Fleming v. Latham, 48 id. 773, 30 Pac. 166. The verdict found by the jury under the guidance of the instructions given is equivalent to general findings in favor of the plaintiff below upon all controverted points, including a finding to the effect that the chattel mortgages were valid; that they were given to relieve the homestead of the mortgagor from the debts secured by the mortgage upon it, and that the mortgagor held possession of the mortgaged property for the mortgagee.
The judgment of the district court is affirmed.
|
[
-16,
124,
-7,
-83,
10,
96,
56,
-120,
88,
-96,
-89,
87,
-21,
-49,
20,
13,
-12,
57,
85,
106,
87,
-78,
51,
42,
-46,
-13,
-79,
-43,
-79,
94,
-12,
95,
76,
48,
-62,
85,
-26,
-118,
-57,
80,
78,
7,
-120,
101,
-39,
64,
112,
27,
-32,
77,
81,
-33,
-13,
40,
29,
74,
104,
40,
123,
61,
-16,
-8,
-117,
-115,
95,
17,
-109,
37,
-100,
71,
-8,
14,
-112,
53,
0,
-32,
115,
-74,
-106,
116,
99,
-69,
9,
98,
98,
48,
77,
-19,
-16,
-116,
46,
125,
-115,
-89,
-110,
88,
-117,
12,
-65,
-97,
108,
4,
38,
116,
-18,
20,
92,
108,
91,
-113,
-106,
-45,
-115,
116,
-104,
-117,
-2,
-125,
57,
113,
-52,
-88,
93,
98,
59,
-103,
-113,
-19
] |
The opinion of the court was delivered by
Milton, J.:
This action was brought by the plain- ^ tiff in error upon a fire-insurance policy for $500 issued by the defendant in error. In the course of the trial it developed that after the loss by fire of the insured property, and prior to the commencement of this action, the policy sued upon and another for $1500, issued by the Queen Insurance Company upon the same property, had been assigned by the plaintiff to the First National Bank of Fort Scott, as collateral security for the payment of indebtedness aggregating about $1100, owing by the plaintiff’s husband, E. J. Daughters, to the bank. The record states that “thereupon, by consent of the parties and of the First National Bank, said bank is now made a party plaintiff to this suit, with the agreement on the part of all interested that the judgment shall bind said bank as fully as the plaintiff and the defendant originally named.” The journal entry of judgment recites : ‘1 Thereupon the parties agreed and the court ordered that the said First National Bank of Fort Scott, Kansas, be made a party to this action as the holder of the assignment of the policy in suit, as collateral security for money loaned by it to E. J. Daughters, and that the trial should proceed without delay.” Judgment was rendered on January 20, 1896, in favor of the defendant and against “the plaintiff for its costs.” The title of the cause was not changed, and from the journal entry showing the overruling of the motion for a new trial it appears that Mrs. Daughters alone filed the motion. The bank does not seem to have participated in any of the proceedings subsequent to the judgment.
On March 13, 1900, and after the briefs of counsel were filed in this court, but prior to the submission of the case for decision, the bank filed an application to be substituted as plaintiff in error, the application alleging that Lulu Daughters had assigned to the said bank all her interest in the subject-matter of the action. Accompanying the application is an acknowledged assignment in due form, and dated March 10, 1900, transferring to the bank the plaintiff’s rights in the premises. In its brief the defendant in error moved to dismiss the petition in error for various reasons, the principal reason being that the First. National Bank, although it was the owner of the policy of insurance sued on, and although the judgment was rendered against it in the district court, did not file any motion for a new trial or except to the overruling of the motion filed by Mrs. Daughters, and did not prosecute proceedings in error from the said judgment, and was not made a party to such proceedings.
“A review in an appellate court is not a natural and inherent right but only exists by authority of law. The appellate jurisdiction of this court is subject to the regulation of the legislature, and unless a party brings himself within the requirements of the statute” (prescribing time and manner of removing a case to this court), “he is not entitled to a review.” (Toof v. Gragun, 58 Kan. 139, 35 Pac. 1103.)
Under the statute, a proceeding for reversing, vacating, or modifying a judgment must be commenced in an appellate court within one year after the rendition of the judgment complained of, except where the person entitled to such proceeding is under legal disability. It was proper for the district court to order the First National Bank to be made a party plaintiff. The bank consented to the making of such order and is bound thereby. The record shows that it was largely interested in the result of the suit. Since it was one of the joint parties plaintiff in the trial court, and therefore a joint party to the judgment for costs in favor of the defendant below, we think it is a necessary party to the proceedings in error. (Pierce v. Downey, 56 Kan. 250, 43 Pac. 223.) The motion to dismiss must therefore be sustained, unless the application to substitute the bank for Mrs. Daughters as plaintiff in error can be properly granted. It is obvious that there must be a valid case pending before the substitution of one party for another in such case can become of any effect. As the case under consideration stands, it is invalid. It follows that the substitution asked for cannot be permitted. Again, if the application to substitute be regarded as a voluntary appearance of the bank as a party in this court, such appearance is unavailing. It comes too late. The case cannot be made valid at this time,, and jurisdiction to review it restored, by the addition of a party, either by voluntary appearance or by agreement. It was so held in the case of Hartzell v. Magee, 60 Kan. 646, 57 Pac. 502, in which it appears that the summons in error was not served or waived, and no appearance was made by the defendant in error in the supreme court until several years after the judgment was rendered in the district court. The court said:
“A proceeding in error is not in time unless it is brought in one year after the rendition of the judgment sought to be reversed. The judgment in question was rendered on March 25, 1893, and the brief was not filed nor the so-called appearance made until 1898, more than five years after the judgment was rendered. Parties to a proceeding in error cannot by voluntary appearance, or even by agreement, confer upon an appellate court power to hear and- determine a proceeding brought after the expiration of the time limited therefor.”
See, also, Smetters & Harris v. Rainey, 14 Ohio St. 287; Curten v. Atkinson, 29 Neb. 612, 46 N. W. 91.
The petition in error is dismissed.
|
[
-14,
124,
-16,
-65,
88,
-32,
44,
-38,
55,
-127,
-91,
-45,
-23,
-49,
20,
109,
86,
57,
101,
106,
-9,
-77,
23,
8,
-46,
-77,
-15,
-59,
-80,
92,
-11,
-33,
72,
48,
10,
-35,
-26,
-62,
-59,
-108,
-52,
-116,
41,
-27,
-39,
-32,
48,
123,
48,
70,
113,
11,
-13,
42,
27,
66,
104,
45,
-21,
-71,
-16,
-80,
-117,
-59,
127,
17,
17,
5,
-102,
5,
88,
46,
-112,
49,
0,
-24,
115,
-90,
6,
117,
111,
-71,
9,
102,
102,
113,
21,
-49,
-88,
-104,
38,
94,
-113,
-122,
-110,
65,
-125,
12,
-66,
-99,
117,
20,
7,
124,
-6,
12,
28,
108,
1,
-101,
-10,
-79,
-113,
-4,
-104,
-121,
-9,
-126,
32,
112,
-62,
-32,
77,
71,
123,
-77,
-34,
-4
] |
The opinion of the court- was delivered by
Milton, J.:
In this case Patrick Coggins was convicted upon each of the eleven counts of an information charging violation of the prohibitory liquor law, and was given the minimum sentence upon each count. He appeals, and alleges numerous errors of the trial court.
The first alleged error relates to the action of the trial court in overruling the defendant’s motion to quash the information and in permitting the same to be amended, and in overruling the motion to strike the amended petition from the files. We think the amendments allowed were proper, within the provisions of section 72 of the criminal code (Gen. Stat. 1897, ch. 102, §93 ; Gen. Stat. 1899, §5321), and that the amended information was good as against the motion to. quash.
Complaint is made of the refusal of the court to grant the defendant’s request, made immediately after the overruling of the motion to quash the information, for a two days’ postponement of the trial. The application for the postponement was orally made, the ground therefor as stated being that the defendant desired time to prepare for his defense. The information had been on file for about two weeks before the trial took place. The statute provides that no amendment of an information .shall cause any delay of the trial unless for good cause, shown by affidavit. The record shows that the defendant did not offer any evidence in his own behalf on the trial of the case. From the foregoing it is evident that the court did not abuse its discretion in requiring an immediate trial.
It is contended that the court erred in permitting the jurors to examine and smell of the contents of two bottles which witnesses testified contained whisky which they had purchased from the defendant. In this matter the court erred. (The State v. Lindgrove, 1 Kan. App. 51, 41 Pac. 688; The State v. Eldred, 8 id. 625, 56 Pac. 153.) The court, however, instructed the jury that they should not take into account any evidence which they thus obtained and should wholly disregard the information and knowledge thus received. The error will not, therefore, justify a reversal of the judgment. (The State v. Reynolds, 5 Kan. App. 515, 519, 47 Pac. 573.)
It is contended that the court erred in refusing to give an instruction asked for by the defendant to the effect that, before the defendant could be found guilty of making sales of intoxicating liquors as charged in the information, the jury must first find that the prosecuting witness had in mind at the time of filing the information every sale upon which the state relied for a conviction. The instruction as asked for was sufficient, and could not have been given without modification. The court gave an instruction in substantial accord with the doctrine declared in the case of The State v. Lund, 51 Kan. 1, 32 Pac. 657, wherein the first paragraph of the syllabus reads :
1 ‘ Where an information is verified by the oath of a private person, it will be presumed, in the absence of anything to the contrary, that he had actual knowledge of the facts stated therein.”
The prosecuting witness who verified the information did not testify in the case, and there is nothing in the record to indicate that he did not have notice or knowledge, at the time the information was verified, respecting the transactions upon which the verdict of the jury is founded. The instructions given by the court do not appear to have been excepted to by the defendant.
The election by the state as to the separate sales upon which it relied for conviction of the defendant was sufficient, within the decision in the case of The State v. Guettler, 34 Kan. 582, 584, 9 Pac. 200.
The instructions as a whole are fair and complete and the verdict is sustained by competent evidence. The judgment of the district court is affirmed.
|
[
-80,
-22,
-7,
29,
10,
97,
42,
-70,
64,
-95,
-73,
115,
-87,
80,
4,
99,
-5,
127,
85,
122,
-60,
-77,
23,
65,
-90,
-77,
-16,
-43,
53,
105,
-28,
-9,
12,
-80,
-62,
117,
102,
-54,
-45,
-36,
-114,
1,
24,
-31,
66,
8,
48,
123,
82,
15,
49,
31,
-93,
46,
26,
-61,
41,
44,
75,
61,
64,
-8,
-103,
13,
15,
22,
-93,
21,
-100,
68,
-56,
44,
24,
49,
1,
-8,
115,
-74,
-122,
116,
15,
-119,
13,
98,
98,
33,
93,
-25,
-84,
-88,
45,
30,
-99,
-89,
-80,
1,
73,
44,
-74,
-35,
116,
20,
47,
126,
-20,
-43,
17,
108,
-127,
-61,
-16,
-69,
15,
56,
-120,
119,
-21,
39,
16,
113,
-51,
-18,
92,
85,
81,
-101,
-114,
-41
] |
The opinion of the court was delivered by
Mahan, P. J. :
This is an action by Ford against Kelley and Kelley to recover damages occasioned by the negligence of the defendants in operating a planing-machine in the factory of the Kelleys. The charge of negligence was that John R. Kelley carelessly, negligently and improperly adjusted said machine, by reason of which- negligent act the plaintiff was injured. The answer was a- general denial and a plea of contributory negligence. There was a trial by a jury and a judgment for the plaintiff against John R. Kelley only.
There are two assignments of error. The first is that the court refused to submit to the jury and require them to answer the following interrogatory: “If you find that the defendant was guilty of negligence in adjusting the machine, state specifically wherein he was' so negligent.”
The second assignment of error is that the court overruled the motion for a new trial, and under this assignment it is contended that the evidence is not sufficient to sustain the verdict and judgment.
While this question might have been submitted to the jury for their consideration, it was not error to refuse it; nor would it have been error to have refused to require the jury to answer the question had they failed therein. There was no issue raised upon the. pleadings nor upon the trial as to wherein John R. Kelley was negligent in adjusting the machine. The question is more in the character of a cross-examina-' tion of the jury. It was not necessary that the plaintiff show in the first instance, or at all, in what specific particular the machine was not properly adjusted. And, again, it was requiring the jury to state upon what evidence they determined a particular fact which was in issue. This cannot be exacted of a jury through special findings ; nor can a jury be cross-examined by aid of special findings under the provisions of the code in relation thereto. It is alleged, and the evidence disclosed the fact, that the planing-machine was adjusted by the use of wheels at the sides of the table on which the planing knives operated, so that the tables on which the lumber rested when being planed were raised and lowered to suit the requirements of the-occasion. Whether it was the raising of one table or the raising of another, or the lowering of one or the lowering of another, was immaterial. The question was, Did the defendant improperly and negligently adjust the machine and not know he did it? How he did it was not an issue, direct or collateral; and it- is only upon issues raised by the pleadings or upon the trial collaterally under the issues made by the pleadings that a party has a right to require special interrogatories put to the jury. This position is illustrated and supported by the following decisions: A. T. & S. F. Rld. Co. v. Lannigan, 56 Kan. 109, 42 Pac. 343; Mo. Pac. Rly. Co. v. Reynolds, 31 id. 136, 1 Pac. 150; Mo. Pac. Rly. Co. v. Holley, 30 id. 465, 1 Pac. 130; National Bank v. Peck, 8 id. 668; City of Wyandotte v. White, 13 id. 191; Bickford v. Champlin, 3 Kan. App. 681, 44 Pac. 901.
There is sufficient evidence to sustain the verdict, and the motion for a new trial was properly overruled.
The judgment is affirmed.
|
[
-16,
-8,
-8,
-83,
72,
-32,
40,
-40,
37,
-95,
-73,
87,
-19,
-49,
-115,
117,
124,
93,
85,
59,
-59,
-93,
7,
-21,
-46,
-77,
-45,
-35,
-76,
75,
-12,
59,
76,
-96,
-54,
-43,
-26,
8,
-59,
92,
-50,
-116,
58,
-22,
-71,
50,
48,
118,
118,
11,
113,
14,
-29,
46,
31,
-61,
107,
40,
-21,
56,
113,
-8,
-102,
-115,
111,
16,
-80,
38,
-100,
37,
120,
62,
-112,
53,
-110,
-8,
59,
-74,
-125,
-36,
105,
-85,
8,
98,
103,
1,
9,
-17,
-7,
-72,
15,
-50,
-115,
-89,
17,
81,
73,
9,
-73,
-51,
112,
16,
6,
126,
-17,
84,
93,
116,
2,
-121,
-80,
-77,
-49,
118,
-100,
-101,
-21,
-121,
-110,
113,
-36,
-69,
95,
37,
19,
27,
-33,
-116
] |
The opinion of the court was delivered by
Milton, J.:
This is an action'in ejectment brought by Clara A. Jeakins, in due time after attaining her , majority, to recover the possession of an undivided one-twelfth interest in certain lands in Butler county, and t]ie rents and profits thereof. The plaintiff claimed title as one of the heirs of her mother, Serena J. Jeakins, who died in that county, intestate, in 1883. Her husband and six children survived her and one child died in infancy. In December, 1885, Mrs. Permilly Scheel, a sister of Mrs. Jeakins, was duly appointed guardian of the minor children of the deceased. The several interests of Mr. Jeakins and of the children, except those of the plaintiff and her sister Effie, were purchased by Mrs. Scheel between February 1,-1886, and October 22, 1889. At the time such interests were conveyed, it appears to have been the understanding that each of the children owned an undivided one-twelfth of the property. On November 5, 1891, Mrs. Scheel, as guardian of the persons and estates of Clara and Effie Jeakins, and acting under an order of the probate court, sold the undivided interests of the said wards at private sale to Carl Scheel for three-fourths of the appraised value of such interests, and on the same day Mrs. Scheel executed a deed therefor to the purchaser. In November, 1894, Mrs. Scheel and Carl Scheel, her husband, conveyed the entire property, by deed of warranty, to the defendant below. This action was begun on January 26, 1897.
The petition was in the ordinary form in ejectment, and the answer contained a general denial only. The defendant admitted knowledge of the fact that his title rested in part on the guardian’s deed, and of the further fact that Carl Scheel and Permilly Scheel were husband and wife at the time that deed was made. It was not denied that they had borne that relation for many years prior thereto. The defendant paid full value for the land, and had occupied it for a little more than two years prior to the commencement of this action. The verdict was in favor of the plaintiff for the recovery of an undivided one-fourteenth interest in the land described in the petition, and $90, her portion of the rents and profits.
While numerous questions are discussed by counsel, we find only one question for decision, and that is whether the court erred in instructing the jury as follows :
“4. Under the law of this state, a guardian has no right to directly or indirectly become the purchaser of real estate of the ward sold by such guardian. And in this case, if the land of the plaintiff was sold at guardian’s sale to Carl Scheel, and said Carl Scheel at the time of the guardian’s sale was the husband of the guardian, then the sale would be void as between the said Carl Scheel and this plaintiff. And if defendant, at the time he purchased the land, knew that Carl Scheel was, at the time of the guardian’s sale, the husband of Permilly Scheel, the defendant’s title would be void as against plaintiff.
“5. The purchaser of land must look to the title papers under which he purchased, and he is chargeable with notice of the facts appearing upon their face, and also with knowledge of the facts suggested therein which he might, with the exercise of reasonable prudence and diligence, have ascertained. And in this case, if you believe the facts recited in defendant’s title papers were such as would have, suggested to a reasonable man that Carl Scheel and Permilly Scheel were husband and wife at the time of the purchase at guardian’s sale by Carl Scheel, then defendant would be chargeable with notice of that fact.
“6. The conveyances by Permilly Scheel, guardian, to Carl Scheel, and .from Permilly Scheel and Carl Scheel to defendant, are prima facie valid, and the burden of proof is upon the plaintiff to show that defendant, at the time he received the conveyance from Permilly Scheel and Carl Scheel, knew that at the time of the guardian’s sale said Permilly Scheel and Carl Scheel were husband and wife, or that the recitals in defendant’s title papers were such as to suggest that fact to a reasonable man, and such as would have put a person of ordinary prudence upon inquiry as to that fact; and unless plaintiff does show these facts, you should find for defendant.”
The statute (Gen. Stat. 1897, ch. 108, § 17; Gen. Stat. 1899, § 3180) provides that the same rules that -are prescribed for the sale of real property by executors and administrators shall be observed in sales by guardians, and as to sales by executors and administrators it is provided (Gen. Stat. 1897, ch. 107, § 132; Gen. Stat. 1899, § 2818) that the executor or administrator shall not, directly or indirectly, become the purchaser of the real estate sold; also (Gen. Stat. 1897, ch. 107, § 133; Gen. Stat. 1899, § 2820), that the executor or administrator shall make return of the proceedings under the order of sale to the court, which report shall be verified by affidavit, stating that he did not, directly or indirectly, purchase such real estate, or any part thereof or any interest therein, and that he is not interested in the property sold except as stated in the report. Such an affidavit, made by Mrs. Scheel, accompanied her report of the sale in the present case. She was then the owner of ten-twelfths of the land in question, and her husband, through that sale and the deed made thereunder, became the owner of the remaining two-twelfths. It does not appear from the record that the fact of their relationship was known to or •considered by the probate court. It is clear that if Mrs. Scheel was directly or indirectly interested in the property sold by her as guardian to her husband such sale was clearly illegal, and an illegal sale made by a guardian of a ward’s property cannot be upheld as against the claim of the ward, seasonably made, unless it appears that the rights of innocent third persons would be injuriously affected by setting aside the sale.
In the case of Bassett v. Shoemaker, 46 N. J. Eq. 538, 20 Atl. 52, which was a case where the wife of an executor had purchased through a third person certain land belonging to the trust property sold at the executor’s sale, the court said :
“The incapacity of the trustee to become the purchaser at his own sale rests upon the ground of public policy. It is wholly immaterial whether the property brings its full value. (Culver v. Culver, 11 N. J. Eq. 215; Mulford v. Bowen, 9 N. J. Eq. 797.) The exclusion of the wife as a purchaser, where the husband sells as a trustee, is not so much for the reason that he may subsequently become entitled to some interest in her land, as on account of the unity that exists between them in the marriage relation. The case falls clearly within the spirit of the principle which excludes the husband himself.”
See, also, Davoue v. Fanning, 2 Johns. Ch. 251.
In the present case the purchaser of the ward’s interest in the land was the husband of the guardian who made the sale, and by such purchase he became a tenant in common with his wife, the guardian, in the ownership of the estate, of which they held apparently the .entire title. We think the guardian thus became interested in the property sold beyond the law’s permission. As to the general incapacity of one who sells property in the discharge of a trust to purchase the same, directly or indirectly, see the following: Michoud v. Girod, 4 How. 503, 11 L. Ed. 1076; Gardner v. Ogden, 22 N. Y. 327; Riddle et al. v. Roll, 24 Ohio St. 527; Rome Land Co. v. Eastman, 80 Ga. 690, 6 S. E. 586; Hoffman v. Harrington, 28 Mich. 90.
The decision by the supreme court of this state in the case of Webb v. Branner, 59 Kan. 190, 52 Pac. 429, rests on the same principle that underlies the foregoing. In that case the action was by a ward to recover an undivided interest in a lot in the city of Topeka. The facts in the record showed that the administrator, who was also the guardian of the plaintiff, had by means of a third person become the purchaser of the property, the intermediary having paid no consideration at the administrator’s sale. The court said:
“It was shown that a fair price was obtained for the lot; but there being a manifest conflict between the duties of the trustee and his personal interests,, the courts, for the purpose of removing all opportunities for frauds, generally hold such transfers to be void, whether they appear to be fair or not. The general rule is that the trustee is disabled from purchasing trust property, whether the purchase was made directly by himself or through another ; and besides we have legislative prohibition.”
In addition to the foregoing, it may properly be observed that in this state the husband and wife have an interest, either direct or indirect, in each other’s real estate. In the case of Busenbark v. Busenbark, 83 Kan. 572, 577, 7 Pac. 245, it was said:
“A wife residing in this state is entitled, upon the death of her husband, to the half of all the real estate owned by him during marriage which has not been sold on judicial sale and is not necessary for the payment of debts, and of which the wife has made no conveyance; so that there is an inchoate interest to the extent of one-half given to the wife in the real estate of her husband. It is true that this interest in the real estate of her husband is inchoate and uncer tain, yet, according to the authorities, it possesses the element of property. . . . We now go further, and declare that although the wife’s right and interest in the real estate of her husband not occupied as a homestead is inchoate and uncertain, yet it possesses the element of property to such a degree that she may maintain an action during the life of her husband for its protection, and for relief from fraudulent alienation by her husband.”
In Hunger v. Baldridge, 41 Kan. 236, 243, 21 Pac. 159, where the wife had given the husband a power of attorney authorizing him to convey her inchoate interest in his real estate, the court said :
“The interest of a wife in the real estate of her husband during marriage is a,contingent one, it is true, but it is unquestionably property,’and no reason has been advanced why she may not employ the husband to act for her and in conjunction with himself convey it away.”
In Warner v. Broquet, 54 Kan. 650, 39 Pac. 228, it was declared that both husband and wife have an interest, either direct or indirect, in each other’s real estate.
The facts in the record show that Frazier purchased the land from Mrs. Scheel and her husband with knowledge that the latter’s interest therein had been acquired under the sale made by Mrs. Scheel as guardian, and that his grantors were husband and wife at the time of that sale. His title papers also were sufficient to charge him with notice of the transaction whereby Carl Scheel became the purchaser of an interest in the land. which, with the exercise of reasonable and prudent diligence, he might have ascertained.” (Knowles v. Williams, 58 Kan. 221, 48 Pac. 856.)
“A purchaser of land must look to the title papers under which he purchases ; and he is chargeable with notice of the facts appearing upon their face and also with the knowledge of all facts suggested therein, and
In view of all of the foregoing, we hold that the court did not err in giving or refusing instructions, that the verdict and the judgment thereon are supported by the proven facts and by the law, and that the question as to the jurisdiction of the court to render the judgment does not properly arise upon the record.
The judgment of the district court is affirmed.
|
[
-16,
108,
-35,
-68,
58,
96,
34,
-102,
106,
-127,
-91,
119,
-117,
-37,
17,
101,
67,
25,
81,
107,
-30,
-77,
23,
-95,
18,
-13,
-79,
-35,
-80,
76,
118,
-41,
76,
34,
-54,
85,
70,
-118,
77,
84,
-114,
-91,
-119,
76,
89,
112,
52,
57,
116,
79,
117,
78,
-13,
42,
93,
87,
-24,
41,
-21,
61,
64,
-88,
-85,
-121,
-101,
19,
-80,
4,
-100,
-63,
-56,
42,
-104,
53,
-120,
-24,
115,
36,
-106,
-12,
67,
41,
40,
102,
103,
19,
-51,
-19,
-8,
-104,
6,
119,
-99,
-90,
-111,
80,
-45,
0,
-65,
-99,
121,
80,
35,
116,
-18,
-115,
92,
108,
13,
-113,
-42,
-111,
15,
120,
-104,
2,
-13,
-89,
50,
113,
-53,
2,
92,
-125,
58,
59,
-114,
-24
] |
The opinion of the court was delivered by
Wells, J.:
On April 1, 1896, the defendant in error John Schneider began an action in the district court of Leavenworth county to quiet his title to a piece of land in that county as against the plaintiffs in error, who were defendants therein. The admitted facts of the case are substantially as follows : On August 22, 1881, the land in controversy was deeded to John Schneider and Sarah Schneider, his wife. At the time of the intermarriage of John and Sarah Schneider, John had a' son, Arthur John Schneider, by a former marriage, and Sarah had three children, viz. : Caroline Howard, now the wife of George Howard, George R. Whiteley, and John W. Whiteley, now married to Annie Whiteley. Arthur John Schneider died January 27, 1893. The contention of the plaintiffs in error is that by the operation of law, under chapter 203, Laws of 1891, entitled “An act to abolish survivorship in joint tenancy,” Sarah Schneider was the owner of an undivided one-half of the land in controversy, and upon her death it descended one-half to her husband and the other half in equal shares to her three children, and that each of said three children is entitled to an undivided one-twelfth thereof. The defendant in error contends that there is no question of joint tenancy in this case ; that the estate held in said land by John and Sarah Schneider was an estate in entirety, and that the act to abolish survivorship in joint tenancy did not and could not. divest or destroy or affect this estate. This is the only ques tion in the case, and the one phase of this question that seems to us conclusive and the only one we think it necessary to consider is : Does the title “An act to abolish survivorship in joint tenancy” authorize the abolition of survivorship in estates in entirety? Unless these two terms are synonymous, this question must be answered in the negative. Under the law as it existed in this state prior to 1891, the estate of John and Sarah Schneider in the land in controversy was that of an estate in entirety. (Baker v. Stewart, 40 Kan. 442, 19 Pac. 904, 2 L. R. A. 434, and other cases following it.) This is an estate in lands generally recognized by the authorities, and while it has some of the characteristics of a joint tenancy, it is clearly distinguishable therefrom. (Washb. Real Prop., ch. 13, § 6; Tiedeman, Real Prop. § 242.)
The first part of section 16 of article 2 of the constitution of the state provides : “No bill shall contain more than one subject, which shall be clearly expressed in its title.” In Comm’rs of Sedgwick Co. v. Bailey, 13 Kan. 600, it was held that this provision was mandatory, and if the legislature should clearly violate this provision by putting something in the body of an act clearly not embraced in the title thereof, or wholly foreign to the title, it would be the duty of the courts to declare such portion of the act void.
As was said by Brewer, J., in The State, ex rel., v. Bankers’ etc. Association, 23 Kan. 501:
“The constitution has said that the title must be an index to the law, and the courts may not sanction as a valid enactment any part of a statute to which the finger of the title does not point. If we should attempt to enlarge the title we should defeat the very purpose of the constitutional prohibition, which was to make the title to a bill notice of all contemplated legislation.”
There being nothing in the title to indicate an intention to abolish survivorship in estates in entirety or to abolish estates in entirety, as that would be the result if the law is sustained, we must hold the law ineffectual to accomplish that, without considering the question of the power of the legislature to change the law as attempted.
The judgment of the trial court will be affirmed.
McElroy, J., concurring.
Mahan, P. J., dissenting.
|
[
-48,
106,
-35,
124,
-118,
96,
-86,
-120,
99,
-127,
39,
83,
-21,
-38,
17,
57,
98,
45,
65,
106,
-57,
-77,
23,
-125,
86,
-13,
-47,
-35,
-80,
77,
118,
70,
76,
32,
10,
-11,
-58,
-54,
-51,
84,
-122,
14,
10,
-52,
-37,
-28,
52,
-17,
18,
27,
65,
-82,
-69,
47,
125,
-11,
72,
46,
-53,
-67,
80,
-72,
-101,
-100,
75,
6,
-79,
18,
-104,
-124,
72,
46,
-112,
53,
8,
-84,
51,
-74,
-106,
116,
23,
-103,
57,
98,
111,
33,
101,
-25,
-72,
26,
14,
-13,
-115,
-89,
-112,
72,
3,
-119,
-66,
-107,
124,
48,
14,
-4,
-25,
14,
28,
-24,
0,
-113,
-42,
-95,
111,
58,
-112,
3,
-13,
39,
-80,
113,
-39,
-60,
93,
103,
114,
-101,
-114,
-10
] |
The opinion of the court was delivered by
Milton, J.:
This action was commenced in the district court of Crawford county by John Dickson against the Cherokee & Pittsburg Coal and Mining Company to recover damages on account of an injury received in a mine belonging to the company at Frontenac, Kan., while he was in its employ as a miner. The plaintiff’s hands and face were severely burned by reason of a shot breaking through the “rib” separating a “room” then being worked by a miner named Gustave Dufresne from the passage called the “ smoke en try.” The shot was fired at about half-past twelve o’clock p. m. on September 19,1898. The custom was to begin firing at fifteen minutes before twelve o’clock noon, and the shots would all be fired by noon. Dickson and two others had eaten their lunch in the main entry near the bottom of the hoisting shaft, and Dickson had just started to go to his tool-box, at the farther end of the smoke entry, when Dufresne fired the shot which caused the injury. It broke through the rib into the smoke entry and Dickson was knocked down and burned by reason of the explosion. The negligence alleged by the petition was that Dufresne was unskilful and incompetent, and that the defendant company, with knowledge of the unskilfulness and incompetency of Dufresne, negligently retained him as an employee, and that the pit boss, Elwood, negligently failed to discover that Dufresne, by reason of his unskilfulness and incompetency, had reduced the rib below the safety point in thickness.
Verdict and judgment were for the plaintiff below in the sum of $2000.
The plaintiff in error contends that the court erred in overruling the demurrer to the evidence of the plaintiff below ; in refusing to instruct the jury to return a verdict in favor of the coal company; in admitting incompetent, irrelevant and improper testimony on behalf of the plaintiff; in refusing to admit competent, material and proper testimony of the defendant ; in overruling the defendant’s motion for a new trial; and in rendering judgment in favor of the plaintiff and against the defendant.
The two material questions for consideration in this court are : First, is there any evidence from which the jury could infer that the plaintiff was incompetent and unskilful? Second, if so, is there any evi dence that the defendant knew, or by the exercise of ordinary care might have known, that Dufresne was incompetent and unskilful?
The first error assigned challenges the whole of the plaintiff’s evidence. The rule is well established in this state that, before a demurrer to evidence can be sustained, the court must be able to say that, admitting and giving due weight to every fact therein which is favorable to the plaintiff, and every inference the jury might fairly and legally draw' from the evidence in favor of the plaintiff, still the plaintiff has utterly failed to prove some one or more of the material facts of his case. (Brown v. A. T. & S. F. Rld. Co., 31 Kan. 1, 1 Pac. 605; Wolf v. Washer, 32 id. 533, 4 Pac. 1036; Christie v. Barnes, 33 id. 317, 6 Pac. 599; City of Syracuse v. Reed, 46 id. 520, 26 Pac. 1043.)
The question of the incompetency and want of skill of Dufresne was for the jury. A master is bound to exercise reasonable care in selecting and retaining servants competent to carry on the business in which they are employed. (7 A. & E. Encycl. of L. 870.) In Railroad Co. v. Doyle, 18 Kan. 58, whiqh was an action by an employee against his employer for injuries caused by the negligence of a fellow servant, it was held that an allegation that the employer knew of the latter’s unfitness and recklessness was sustained by proof showing that such incompetency ought to have been known by the defendant. It was the duty of the pit boss, Elwood, to exercise constant supervision over the miners, and to see that the work was properly done. There was no fixed rule as to when the shots were to be fired, but the custom upon which the miners generally relied had been established, and the shot fired by Dufresne was at a time not in accordance with such custom. The rib should have been kept at a thickness of ten feet; it was actually reduced in thickness by Dufresne to about three feet. A room should have been about twenty feet in width; Dufresne’s room was between thirty and forty feet wide. Drill holes for shots should have been made parallel with or at an angle from the rib; Dufresne drilled into the rib at times. The side of the wall next to the rib should have been kept reasonably smooth and uniform ; the side of Dufresne’s room next the rib was exceedingly irregular. These facts were open to the observation of Elwood, and he had ample time and opportunity to learn of them. Other facts might be cited tending to show Dufresne’s unskilfulness and incompetency as a miner, but the foregoing are sufficient to show that the court properly overruled the demurrer to the plaintiff’s evidence.
For the same reason the requested instruction for a verdict in favor of the defendant was properly overruled. The testimony admitted over the objection of the defendant, and hei’e complained of, was that of the plaintiff himself and of one Arthur Malle. It relates to the manner of mining, carrying forward a room, and putting in shots, and to a conversation between the plaintiff and the pit boss. The testimony of Dickson concerning the making of a break-through, whether competent or not, was material, in view of the finding by the jury that Dufresne was not making a break-through at the time the shot which injured the plaintiff was fired. His testimony as to the conversation with Elwood was clearly competent, since it tended to prove knowledge on the part of Elwood of the unskilful work being done by Dufresne. The objection that the time when the conversation occurred was not stated is met by the fact that Dufresne had been working in the mine about two and one-half months before the injury, and Dickson about one month. Hence, the conversation occurred more than forty-five days after Dufresne had begun working in the mine and after Elwood had become acquainted with the character of his work. There is other testimony indicating that the conversation occurred some time after Dickson had begun to work. The testimony of .the witness Malle was objected to for the reason that it stated the opinion and conclusion of the witness concerning a matter respecting which he was not qualified to testify. We think the objection was not well taken. The witness was an experienced miner and was testifying from personal knowledge as to the character of the work done by Dufresne in the mine. He was asked if he knew the proper way to get out the coal after the shot was fired, and, over objection, he answered that he knew, and then proceeded to state the proper process. • His testimony tended to prove that Dufresne was not a skilful miner.
Counsel for plaintiff in error contend that the court erred in refusing to admit certain testimony of its witness Joseph Wilson. The witness, having answered that he could tell from examining the amount of powder used and the amount of merchantable coal produced by a miner during a considerable length of time and under ordinary conditions whether or not such miner was ordinarily skilful, was then asked the following question:
“What would you say if you were given that a man in a certain length of time used a certain amount of powder and produced therefrom a large quantity of coal, or what an average miner produces, what would you say about the skill of that person ?”
The question was objected to as being incompetent, irrelevant, and immaterial, and the objection was sustained. It is clear that the objection was properly sustained, since the question does not cover several features connected with mining which are essential to a determination of the question at issue. The witness did not know Dufresne, and had never been in Dufresne’s room. Besides this, there was no testimony before the jury showing anything about the quantity of powder that Dufresne used. As a hypothetical question it was improper, since it assumed-the existence of a matter material to the formation of a correct opinion about which no testimony had been given. (Davis v. Insurance Co., 59 Kan. 74, 52 Pac. 67.) It was also objectionable for the reason that it called for direct testimony as to skill or lack of skill of a miner. (Coal Co. v. Dickson, 55 Kan. 62, 68, 39 Pac. 691.) The testimony of the witness Lawton as to the skill and competency of Dufresne, judged from the amount and condition of coal mined by the latter, was properly rejected, under the authority of the case just cited. In his testimony, which was given in a narrative form, Lawton stated positively that Dufresne was a competent, practical miner, and that he knew this from the amount and condition of the coal that he got out. The statement that Dufresne was a competent miner was entirely improper, and the reason given for the opinion stated was insufficient, since the amount and condition of the coal mined are but a part of the elements forming the basis of a judgment in respect to the competency of the miner.
Other contentions of counsel for plaintiff in error are that certain of the special findings are not sustained by the evidence.
The third, tenth and twelfth findings are based upon conflicting evidence. The fourteenth finding could not be completely answered by yes or no. The answer given is responsive to the first part of the question and is sustained by the evidence, and in this view the last part of the question was immaterial. From the fifteenth and sixteenth findings, it appears that the jury thought “some part” of the plaintiff’s duty required him to be at the place where he received the injury as a place of safety from his own shot. As the evidence shows that he arrived at the place where he ate his lunch before his own shots exploded, and as it was in fact a safe place so far as his own shots were concerned, and as the plaintiff testified that one purpose for starting back was to learn what execution his shot had made, it cannot be said that the findings are without some foundation in the proven facts. The eighth finding, which is that Dufresne had been engaged in the work as a coal-miner less than four months, is apparently contrary to the evidence. He had in fact worked in coal-mines in Pennsylvania and in Kansas almost eleven months. There was evidence, however, that he had worked about four months in mining bituminous coal in Kansas and that his work in the Pennsylvania mines was in anthracite coal, the processes being somewhat different in the two classes of mines. In the Pennsylvania mines, where the veins of coal are much thicker than at Frontenac, the work was done by drilling and blasting, while at Frontenac the pick was employed. As the witnesses seemed to regard a miner as one who used a pick in his work, and as Dufresne had been engaged in that kind of mining for only four months, this finding is not so far at variance with the evidence as to justify a reversal of the case. We think the trial court did not err in overruling the motion for a new trial and in rendering judgment upon the verdict in favor of the plaintiff below. The judgment is affirmed.
|
[
-76,
104,
-7,
-100,
8,
-32,
40,
-38,
85,
-31,
-91,
115,
-19,
-97,
1,
105,
50,
93,
-44,
105,
68,
-73,
19,
64,
-110,
83,
81,
-59,
49,
106,
-12,
95,
72,
120,
10,
-35,
-26,
72,
-59,
92,
-124,
-84,
-23,
-32,
87,
0,
56,
122,
116,
75,
49,
30,
-13,
42,
26,
-53,
73,
60,
-49,
-86,
80,
-16,
-78,
-59,
108,
16,
-93,
2,
-114,
7,
-40,
62,
-102,
53,
2,
-20,
115,
-90,
-126,
-12,
33,
-119,
12,
102,
34,
49,
21,
-49,
104,
-88,
62,
-2,
-115,
39,
-80,
73,
-125,
12,
-74,
-99,
126,
84,
-122,
122,
-21,
21,
89,
41,
3,
-118,
-80,
-77,
15,
60,
-106,
115,
-21,
-89,
-76,
117,
-124,
50,
92,
5,
83,
-101,
-33,
-68
] |
The opinion of the court was delivered by
Schoonover, J.:
At the October term, 1899, of the district court of Elk county, the defendant was charged in four counts with violating the prohibitory law.
The defendant McBee asked that he be permitted to plead guilty to one count, and the county attorney asked the court to accept the plea and recommended “that the sentence of the court be the minimum penalty fixed bylaw, provided that he save the state from all costs.” It was further represented to the court that ‘ * the defendant McBee is engaged in business in said city of Howard as a druggist, and is so conducting his business as to reflect credit upon himself as an honorable gentleman, and, as I verily believe, has been so conducting said business for a long time prior to this date.”
Upon this recommendation, the district court accepted the plea of guilty to the first count and the prosecuting attorney dismissed as to the remaining three.
At the time the defendant was sentenced, the trial judge entered upon his docket the following:
“October 3. Defendant withdraws his plea of not guilty as to the first count of the indictment, and enters a plea of guilty as charged in the first count of the indictment. Defendant sentenced to confinement in the county jail for thirty days and pay a fine of f 100 and costs of prosecution, stand committed to the county jail until fine and costs are paid, and to enter into a bond in the sum of $500, with sureties to be approved by the clerk, to be of good behavior for two years, and- particularly not to-violate any of the provisions of the law regulating the sale of intoxicating liquors. Nolle pros, as to the remaining counts of this indictment entered by the county attorney.”
. From this memorandum made by the court the following journal entry of the sentence and judgment of the court was drawn and recorded, and the defendant committed accordingly:
“Now, on this 3d day of October, 1899, comes said plaintiff, by W. A. McOausland, county attorney of Elk county, Kansas, and comes said defendant in his own proper person and by John Marshall, his attorney ; and thereupon said defendant asks leave of the court to withdraw his plea of ‘ not guilty ’ as to the first count of the indictment filed herein against -him, which leave is by the court granted, and thereupon said defendant withdraws his plea of ‘ not guilty’ as to the first count of the indictment herein; and thereupon said defendant waives an arraignment under the first count of the indictment herein and: enters a plea of ‘guilty’ as to the first count of said-indictment ; and thereupon the said W. A. McCausland, county attorney of Elk county, Kansas, asks leave of court to dismiss this action as to the second f third and fourth counts of the indictment filed herein, which leave is by the court granted; thereupon said defendant asks that judgment be pronounced upon his plea of ‘guilty ’ as to the first count of the indictment herein; and thereupon said defendant, Mark McBee, was informed by the court that he had plead guilty to selling intoxicating liquors contrary to law, as charged in the first count of the indictment filed herein against him, and being inquired of by the court if he had any legal causes to show why judgment should not be pronounced against him according to law and said defendant failed to show any cause.
“It is therefore by the court considered, ordered, adjudged and sentenced that said defendant, Mark McBee, be confined in the jail of Elk county, Kansas, for a period of thirty (30) days, that he pay a fine of one hundred dollars ($100). to the state of Kansas, that he pay the costs of this prosecution, taxed at $-, and that he be committed until such fine and costs are paid, and that he give bond, with sureties to be approved by the clerk of this court, in the sum of five hundred dollars ($500) to be of good behavior for two (2) years, and particularly not to violate any provision of the law regulating the sale of intoxicating liquors. It is by the court further ordered that this action be dismissed as to the second, third and fourth counts of the indictment herein.”
It appears that after the defendant had been confined in jail for thirty days, and after he had paid the fine and costs, he demanded of the sheriff that he be released and discharged. The sheriff refused to release him for the reason that no bond had been given as required by the court. The defendant appealed to the probate court of Elk county for a writ of habeas corpus, which was granted, and upon the formal hearing the defendant was discharged.
On the 6th of February, 1900, the county attorney filed the following motion to amend and correct the journal entry made on the 3d day of October, 1899 :
“Row comes the county attorney of Elk county, Kansas, W. A. McOausland, and shows to the court that at the October term of the Elk county district court, 1899, the defendant above named was by the court sentenced to the jail of Elk county and to pay a fine of $100 and the costs of prosecution, and that he enter into a bond in the sum of $500 for the term of two years that he will be of good behavior, especially with reference to the prohibitory liquor law, and that he stand committed to the jail of Elk county, Kansas, till such bond be given ; and whereas, the clerk in entering judgment in said case erroneously omitted from the minute docket the following language : ‘ that the defendant be committed to the jail of Elk county until such bond be given,’ said county attorney now moves the court for permission to correct the journal entry of judgment heretofore filed and recorded in this case, and moves that the defendant now be required to enter into the bond in accordance with the order and judgment of the court at the October term, 1899.”
Upon the hearing of this motion, the journal entry of judgment was corrected and the defendant ordered committed to jail until such bond be given. From this order the defendant, McBee, appeals.
This record is perplexing. It is alleged in the motion, “The clerk in entering judgment in said case erroneously omitted from the minute docket the following language : ‘That the defendant be committed to the county jail of Elk county until such bond be given.’ ” In the book denominated the minute docket by the clerk on the witness-stand, the following is recorded :
“October 3, 1899. Plea of guilty on one count.
“October 3, 1899. Sentenced to county jail of Elk county, Kansas, for a period of thirty days ; pay a fine of $100 and costs ; committed until fine and costs are paid; give bond for $500 to keep the peace,' and particularly not violate the provisions of the prohibitory law of Kansas, and stand committed until such bond be given.”
It appears from the evidence that the words “to keep the peace, and particularly not to violate the provisions of the prohibitory law of Kansas, and stand committed until such bond be given,” were added at the suggestion of the judge on the same day, in the office of the clerk, at about the time or soon after sentence was pronounced.
It is contended that the journal entry was drawn by counsel for defendant, McBee, and not .submitted to the county attorney for approval. This is true ; but no criticism can attach to counsel for defendant. It was the duty of the prosecuting attorney, under the rules of the court, to prepare the journal entry. It appears that the defendant was held by the sheriff for several days without a commitment; that no journal entry was drawn until' the sheriff demanded that some authority be given him to hold the defendant. The journal entry was drawn by counsel for defendant at the request of the county attorney from the minutes of the court as they appear in the docket, and in exact conformity therewith, filed with the clerk, and a certified copy delivered to the sheriff.
That this defendant was ordered to give bond and that he has failed to comply with the order of the court fully appear from the record. He should be punished, but the uncertainty of the record in this case is such that we cannot approve the judgment of the court in correcting the journal entry and ordering the defendant committed after the judgment as written in the record had been fully satisfied. All doubts must be resolved in favor of the defendant.
The judgment of the district court is reversed and the defendant discharged.
|
[
-80,
-26,
-68,
-36,
42,
-32,
42,
-104,
74,
-111,
-76,
115,
-23,
92,
5,
113,
-37,
123,
85,
105,
-48,
-74,
6,
-62,
-74,
-77,
-125,
-43,
-79,
75,
-19,
-43,
79,
-74,
90,
61,
102,
-54,
-127,
-36,
-118,
1,
-119,
-32,
-61,
10,
52,
59,
50,
11,
49,
30,
-29,
42,
30,
-54,
-87,
44,
-37,
109,
-40,
-16,
-102,
61,
125,
22,
-125,
2,
-106,
5,
88,
46,
-104,
49,
65,
-24,
115,
-106,
4,
84,
79,
-120,
44,
46,
98,
33,
29,
-17,
-88,
-120,
30,
59,
-99,
-25,
-100,
88,
-85,
8,
-106,
-99,
126,
18,
-114,
-8,
-20,
20,
57,
104,
-127,
-102,
-80,
-79,
-113,
125,
-52,
30,
-21,
-89,
49,
113,
-59,
-26,
124,
-41,
120,
-101,
-50,
80
] |
The opinion of the court was delivered by
Schoonover, J.:
The defendants were doing a general merchandise business at Blue Mound, Kan. They were indebted to plaintiff in error in the sum of $1805, and were also indebted to numerous other parties.
On the 28th day of December, 1892, they made an assignment for the benefit of their creditors. Afterward they agreed with all their creditors and settled by a payment of fifty per cent, of the amount of the original indebtedness. In the settlement, the plaintiff in error procured from the defendants in error nine promissory notes, for the sum of $100 each.
In 1898 plaintiff in error, as plaintiff below, commenced an action in the district court of Linn county to recover the amount due on the notes. The defendants in error, defendants below, answered by general denial, and alleged:
“ Said defendants answering say that on or about the 28th day of December, a. d. 1892, they were partners in the general merchandise store of Cozad, duck-lick & Co., of Blue Mound, Kan., and that on said date they made an assignment for the benefit of their creditors, and that afterward, on the 28th day of February, 1893, they made an agreement with all their creditors whereby, in consideration of the sum of one dollar and the payment of fifty per cent, of the original claims of all the creditors against said firm of Cozad, Glucklick & Go., they were to be discharged and relieved by all creditors of all claims held by the said creditors against them, and that said agreement has been carried out by said firm of Cozad, Glucklick & Co.
“Defendants further say that the firm of E. Rothschild & Bros, were creditors of the then firm of Oozad, Glucklick & Co., and that they agreed to said settlement and that they have been paid their full fifty per cent, of the amount of their claim against the said firm of Cozad, Glucklick & Co., and that the notes sued on herein were notes that the said firm of E. Rothschild & Bros, compelled said defendants to execute and deliver to one T. F. Vaughn for the remaining half of their claims against the said firm of Cozad, Glucklick & Co.
“That the said firm of E. Rothschild & Bros, attempted by the said notes to force said defendants to pay the said firm of E. Rothschild & Bros, the full amount of their said claims while pretending to the other creditors of said firm of Cozad, Glucklick & Co. that they were receiving only fifty per cent-., as the other creditors were likewise doing.
“That the said payee of said notes, T. F. Vaughn, was the credit man of said firm of E. Rothschild & Bros., and that said notes were made payable to him for the purpose of trying to defeat, cheat and defraud •these defendants, instead of carrying out a good-faith adjustment of the indebtedness of the said firm of Cozad, Glucklick & Co., as by their said agreement they agreed to do, and that said notes are without any consideration whatever.
“That said firm of E. Rothschild & Bros., a corporation, plaintiff herein, is the successor to the firm of E. Rothschild & Bros., and know and have full knowledge of all the facts above alleged and herein stated.”
The reply of plaintiff is in substance as follows:
“Further replying, plaintiff says that it never made and executed any contract such as-referred to in the answer of said defendants and that no such contract was ever made or carried out in good faith on the part of said defendants.
“Further replying, plaintiff says that' it never made or authorized any person to make for it a composition settlement such as is alleged in the answer of the said defendants, and that said pretended composition settlement is void and of no effect, as the same is without consideration of any kind.
“ Plaintiff further says, by way of reply, that it never at any time, by its agents or representatives, consented to any composition settlement, and that if any composition was agreed to in any way by the agents or representatives of said plaintiff, it was wholly without authority of said plaintiff, and that said plaintiff has never ratified the act of said representative, and that if consent was procured or obtained for such composition agreement, it was done by fraudulent, practices oh the part of said defendants, and by fraudulent concealment of material facts on the part of said defendants, and that said plaintiff was not able by due diligence and did not, in fact, discover said fraudulent acts and concealment of said defendants until within the two years last past.’'’
A jury was waived, and the trial of the issue submitted to the court. Judgment was rendered; and the defendants released and discharged from all liability upon the notes. Plaintiff below brings the case here for review.
The only question presented is one of fact. We have carefully read all the evidence contained in the record and feel satisfied that it is sufficient to sustain the judgment.
The judgment of the district court is affirmed.
|
[
-80,
110,
-71,
125,
-102,
-32,
34,
-102,
89,
-127,
54,
115,
-23,
-57,
16,
125,
-9,
29,
80,
122,
102,
-77,
7,
75,
-46,
-77,
-37,
-59,
-79,
-23,
-28,
-44,
76,
48,
74,
-35,
-26,
-30,
-59,
28,
-114,
4,
8,
-60,
-39,
0,
48,
-71,
20,
72,
113,
-82,
-5,
43,
22,
79,
105,
45,
105,
57,
-47,
-16,
-70,
-123,
127,
23,
-109,
4,
-104,
7,
-54,
46,
-104,
53,
3,
-24,
114,
-74,
-58,
84,
15,
25,
12,
38,
102,
80,
17,
-49,
-8,
-68,
46,
-9,
-115,
-89,
-112,
72,
-125,
45,
-66,
-99,
124,
86,
7,
84,
-17,
-116,
25,
41,
3,
-54,
-76,
-126,
-97,
116,
-100,
3,
-33,
-121,
49,
113,
-49,
48,
93,
71,
58,
19,
14,
-79
] |
The opinion of the court was delivered by
Dennison, P. J.:
The defendant Asbell was prosecuted by information for violating the provisions of section 13, chapter 139, General Statutes of 1897 (Gen. Stat. 1899, § 7090), and convicted, and sentenced to pay a fine of $500 and costs. He appeals to this court and asks us to review the alleged errors pointed out.
We have carefully examined the record and the briefs and find no error committed by the trial court, ■except perhaps in a failure fully to instruct the jury as to the evidence necessary to rebut the prima facie •case as to the cattle being ‘ ‘ capable of communicating and liable to impart Texas, splenic or Spanish fever, and that Asbell had full knowledge and notice thereof,” as provided for in section 27, chapter 139, supra.
The case of Patee v. Adams, 37 Kan. 139, 14 Pac. 505, would indicate that proof of knowledge is essential to a recovery or conviction, and the defendant was undoubtedly prejudiced by the failure of the court to instruct the jury upon the question of knowledge of Asbell as to the liability of the cattle to impart or communicate the disease. We find ourselves precluded from reviewing this question, for-we are unable to find anywhere in the record that the defendant objected or excepted to the instructions given, nor do we find any request for other or different instructions than those given.
We cannot review the instructions given by the ■district court unless the instructions were excepted to by the plaintiff in error at the time they were given. (See City of Wyandotte v. Noble, 8 Kan. 444; Barlow v. Emmert, 10 id. 358; Joseph v. National Bank, 17 id. 256; Comm’rs of Allen Co. v. Boyd, 31 id. 765, 3 Pac. 523; Russell v. Bradley, 47 id. 438, 28 Pac. 176; Tatum v. Roberts, 5 Kan. App. 730, 46 Pac. 983.)
It was clearly the duty of the defendant to request the court in writing to give other or different instructions, as provided by section 275 of the code (Gen. Stat. 1897, ch. 95, § 285; Gen. Stat. 1899, § 4538). If no such request is made the instructions stand as the law of the case for that trial. The judgment cannot be reversed in a reviewing court on the ground that the trial court should have given other or different instructions, where such request in writing is not made on the trial. (Douglass v. Gieler, 32 Kan. 499, 4 Pac. 1039; The State v. Smith, 38 id. 196, 16 Pac. 254; Martin v. Railway Co., 61 id. 164, 247, 32 Pac. 901.)
The judgment of the district court is affirmed.
|
[
112,
-20,
-12,
-99,
8,
-32,
58,
-102,
65,
-87,
-89,
83,
109,
-46,
5,
63,
119,
61,
85,
97,
-60,
-73,
23,
67,
-78,
-6,
-47,
-43,
53,
111,
-10,
-3,
77,
48,
-54,
21,
38,
64,
-63,
92,
-114,
13,
-119,
-63,
-39,
48,
60,
117,
54,
75,
49,
30,
-29,
42,
30,
-61,
41,
44,
107,
61,
-24,
-79,
-70,
15,
127,
2,
-77,
102,
-88,
5,
88,
46,
-104,
49,
1,
-4,
115,
-74,
-125,
116,
109,
-119,
8,
98,
98,
33,
92,
107,
8,
-116,
47,
127,
-115,
-90,
-112,
8,
67,
44,
-106,
-67,
37,
80,
6,
-8,
-27,
21,
29,
124,
3,
-113,
-108,
-77,
-113,
52,
-112,
-45,
-21,
-89,
-112,
117,
-51,
-6,
93,
69,
90,
-109,
-114,
-76
] |
The opinion of the court was delivered by
Wells, J.:
This action was brought in the court of common pleas of Wyandotte county by David F. Matchett against J. M. Minnick and Clark J. Hanks upon certain promissory notes executed by said Min-nick to the Plano Manufacturing Company. Said notes were purported to be guaranteed by Clark J. Hanks and transferred to the plaintiff. Service of summons was made in Wyandotte county on Hanks, and on Minnick in Franklin county, where he resides. On March 7, 1899, judgment was rendered therein against said J. M. Minnick alone. On March 81, 1899, Minnick filed a motion to set aside the judgment, alleging want of jurisdiction in this, that he was the only defendant liable on said notes; that the said Hanks was employed by plaintiff to indorse them solely as an excuse to bring the action in a county-other than where said defendant resided, which was in Franklin county; and that defendant did not appear at the time of trial through a mistake of his attorney as to dates. On May 1, 1899, this motion was sustained and the judgment set aside. At the September, 1899, term of said court, another judgment was rendered in the cause ; this time against both of the defendants J. M. Minnick and Clark J. Hanks. On the 14th of February, 1900, Minnick filed a motion to set aside the last-rendered judgment and to correct the journal entry of the action of the court on May 1, 1899, so as to show the dismissal of the case, which motion was, on February 17, 1900, overruled, and the case brought here for review.
There are two assignments of error made by the plaintiff in error:
“1. The court erred in rendering the second judgment against the defendant Minnick, because it had no jurisdiction over his person.
“2. The court erred in overruling the motion of the defendant Minnick to set aside the second judgment rendered against him, because said judgment was void.”
These raise but the one question of the jurisdiction of the court over the defendant, the plaintiff in error here.
We think the court had jurisdiction. The defendant Hanks appears from the petition to have been a proper defendant, personal service was had upon him in the county where the action was pending, and this gave prima facie authority for the service upon the plaintiff in error. The good faith of the suit against Hanks- was questioned by the motion to set aside the first judgment, and that judgment was vacated presumably to give the plaintiff in error an opportunity to try the issues involved. This he failed to do, and at the next term judgment was taken against both, of the defendants. So far as this case in its present condition is concerned, we must presume that the action was rightly brought in Wyandotte county. The theory of the plaintiff in error seems to be that the taking of a judgment against him and not against Hanks was equivalent to a dismissal as to Hanks, or perhaps as a finding in his favor, and therefore removed the foundation upon which the jurisdiction of the plaintiff in error was predicated. The fallacy of this proposition is in the premises. The validity of the claim against Hanks was the basis of the service upon the plaintiff in error, and when that was disputed the court properly vacated the judgment already rendered and placed the parties in a position to try that issue. This they failed to do, and upon this failure there was nothing for the court but to render judgment upon the pleadings filed. The judgment of the court of common pleas is affirmed.
McElboy, J., concurring.
|
[
-80,
96,
-12,
-35,
8,
-32,
34,
24,
63,
113,
119,
115,
-51,
-57,
29,
125,
126,
45,
85,
104,
-31,
-89,
3,
-29,
18,
-77,
-39,
77,
-80,
77,
119,
-33,
76,
48,
10,
-99,
-57,
66,
-59,
22,
-58,
32,
41,
-24,
-39,
-120,
52,
-7,
16,
73,
53,
-114,
-13,
47,
62,
75,
-19,
44,
91,
-69,
64,
-80,
-102,
-121,
126,
16,
17,
39,
-124,
7,
72,
46,
-112,
53,
-111,
-20,
82,
-74,
-126,
-12,
37,
-5,
8,
118,
102,
113,
16,
-17,
-8,
-7,
30,
-65,
-115,
-25,
-76,
72,
-85,
33,
-74,
-100,
109,
80,
6,
-46,
-18,
4,
25,
44,
3,
-113,
-78,
-63,
-113,
100,
-38,
19,
-61,
-29,
52,
81,
-58,
-94,
93,
71,
27,
-101,
-113,
-112
] |
The opinion of the court was delivered by
Milton, J.:
The plaintiff in error as plaintiff below sought by replevin to recover the possession of a pacing stallion, called “Wichita Tom,” which he claimed under a chattel mortgage, and which had been seized by Rufus Cone, as sheriff of Sedgwick county, Kansas, under an order of attachment issued in an action brought in that county by Sheridan Gilmore against Robert Reed. 'The mortgage was executed on June 18, 1895, in Wichita county, Texas, by A. W. Reed, a resident of that county, and was delivered by him to the City National Bank of Wichita Falls, Texas, to secure the payment of a promissory note given that day by Reed to the bank for the sum of $288.48, and payable twelve months after its date. The mortgage stated that the note was given as a renewal of a note executed by Reed to the plaintiff in error on July 17, 1891, and that the last-named note was secured by a chattel mortgage upon the stallion. The mortgage in the present action was duly filed for record on the next day after its execution, and the note secured thereby was subsequently duly indorsed and delivered to the plaintiff. The mortgage was in the form of a trust deed, one Frank Dorsey being the trustee, and the Bank of Wichita Falls the beneficiary. The mortgage provided that if for any reason the trustee should be unwilling or unable to perform the duties therein imposed upon him, then the holder of the note might appoint a substitute. Dorsey died before the commencement of this action, and no substitute was appointed by the plaintiff, the holder of the note.
The claim of the defendant Gilmore, upon which his attachment action was based, was for money advanced for entrance fees at various races where the mortgaged horse was entered, and for the expenses of transporting the horse from place to place. At the time the horse was mortgaged it was in Hill county, Texas, in charge of Robert Reed, a brother of the mortgagor, and the arrangement whereby Gilmore furnished the money was made between him and Robert Reed, and probably two or three months after the filing of the mortgage. It was agreed between Robert Reed and Gilmore that the latter was to be reimbursed from the winnings made by the horse, if any, and that Gilmore was to retain possession and control of the horse until he should be repaid. It does not appear that either the plaintiff or the mortgagor was aware of or participated in any way in the said arrangement between Robert Reed and Gilmore. The latter, in December, 1895, shipped the horse to Wichita, Kan., and shortly afterward instituted his attachment suit. Several verdicts were returned in favor of the defendants Chandler and Maulsby, and jointly in favor of the defendants Gilmore and Cone ; the latter verdict being in the alternative and fixing the amount of Gilmore’s recovery at $418.40, in case a return of the property, which had been delivered to the plaintiff at the commencement of the action, could not be had. There was a verdict also for the plaintiff as against the defendant A. W. Reed. The judgment of the trial court followed the verdict in favor of Gilmore and Cone, and adjudged the costs of the action against the plaintiff. No judgment was rendered upon the other verdicts. The court instructed the jury to find in favor of the plaintiff as against A. W. Reed, since the latter’s answer admitted all of the allegations of the petition.
The defendant A. W. Reed has not been served with a summons in error. A motion to dismiss the proceedings in error has been filed, one of the grounds being that Reed is a necessary party to such proceedings. As already, stated, he is not named as a party to the judgment rendered in the action. The judgment may be somewhat irregular in this respect, but it is- not complained of by the defendants in error. We have examined the other grounds of the motion to dismiss and think it must be overruled.
Counsel for plaintiff in error contend that the jury made two material special findings which are entirely contrary to the evidence. The findings complained of are that A. W. Reed was not the owner of the horse at the time of the execution of the note and mortgage upon which the plaintiff’s action rests, and that there was nothing due on the said note at the time of the trial.- The record shows that under the law of Texas and under the terms of the mortgage the note became due immediately upon the removal of the mortgaged property from that state. There was positive testimony that A. W. Reed owned the horse at the time he gave the mortgage, and that he had been in possession of the horse as its owner for several years prior thereto. The chattel mortgage states that the same horse was mortgaged by A. W. Reed in 1891 to secure the promissory note held by the plaintiff in error, and that such mortgage was duly recorded. The defendant Gilmore did not obtain possession of the horse until October 21, 1895, about four months after the chattel mortgage was duly recorded. It is true that there is testimony showing that, some weeks or months after the mortgage was recorded, Robert Reed, who was in possession of the horse, claimed to own it. This evidence does not tend to negative the testimony that A. W. Reed was the owner of the horse at the time the mortgage was given. The finding, of the jury is clearly contrary to the evidence.
The finding that nothing was due on the note held by the plaintiff is complained of. The answer of A. W. Reed admitted the allegation of the petition which alleged that the note given by him and owned by the plaintiff was entirely unpaid, and the court instructed the jury to find for the plaintiff under such, admission, which was accordingly done. The note, by its terms, was not due for several months after this action was commenced, and it was not claimed by the plaintiff that it was due, except by reason of the terms of the mortgage, which, as already stated, provided that the note should become due if the property were removed from the state of Texas. There was no positive testimony to the effect that the note was still unpaid, or that it was paid. It was alleged and proven that before its maturity the note was indorsed and delivered to the plaintiff by the proper officer of the City National Bank of Wichita Falls.
“The mere possession of a negotiable instrument, produced in evidence by the indorsee, or by the assignee where no indorsement is necessary, imports prima facie that he acquired it bona fide for full value, in the usual course of business, before maturity, and without notice of any circumstance impeaching its validity; and that he is the owner thereof, entitled to recover the full amount against all prior parties. In other words, the production of the instrument and proof that it is genuine (where indeed such proof is necessary) prima facie establishes his ease ; and he may there rest it.” (Daniel, Neg. Inst., 4th ed., § 812.)
We hold that this special finding was not warranted by the law or the facts. Since the two special findings under consideration were clearly improper, the court should have set aside the general verdict and granted a new trial, upon the motion therefor filed by the plaintiff. (Railway Co. v. Fray, 31 Kan. 739, 3 Pac. 550; Railway Co. v. Duncan, 40 id. 503, 20 Pac. 195; Railroad Co. v. Long, 46 id. 260, 26 Pac. 682.)
The judgment of the district court will be reversed and the cause remanded for a new trial.
|
[
-12,
102,
-112,
45,
72,
-32,
42,
-102,
72,
-87,
-89,
83,
-55,
-61,
4,
45,
-26,
109,
101,
107,
86,
-78,
7,
-32,
-46,
-5,
-47,
-43,
-75,
77,
-26,
-41,
13,
56,
-54,
87,
-28,
10,
-127,
92,
-114,
-123,
11,
-28,
-39,
72,
56,
107,
55,
73,
49,
-97,
-13,
34,
61,
67,
109,
40,
-35,
45,
-40,
-15,
-5,
-122,
-1,
7,
49,
70,
-82,
67,
-40,
46,
-112,
49,
0,
-24,
90,
-76,
-118,
-44,
45,
-119,
9,
102,
98,
33,
93,
-113,
98,
-104,
15,
-43,
-121,
-90,
-78,
89,
35,
101,
-106,
-99,
107,
2,
7,
-4,
-17,
-100,
29,
-28,
19,
-50,
-108,
-109,
111,
60,
-112,
19,
-41,
-82,
16,
101,
-49,
-96,
89,
71,
52,
-101,
-113,
-3
] |
The opinion of the court was delivered by
Milton, J.:
L. G. Scott, while an employee of the receivers of the Atchison, Topeka & Santa Fe Railroad Company, was injured by the caving in of an embankment of earth. He was at work in a deep trench which extended along the base of an embankment and between it and the Marais des Cygnes river. The trench was being dug and then filled with stones, to protect the embankment against erosion by the river. On the top of the embankment, and a few feet from its edge, was the railroad operated by the receivers. No precautions had been taken to prevent the bank, which was almost perpendicular, from falling. Scott had worked there about fourteen days prior to the date of his injury. The petition alleged that the plaintiff was not familiar with that kind of work ; that the foreman in charge thereof was a man of long experience therein, and possessed expert knowledge and skill respecting the same; that no shores or props were used by the defendants or their foreman, at any time while the said work was in progress, to support the steep and dangerous bank and to prevent the same from falling; that at divers times, but particularly on the 8th and 9th days of October, 1895, the plaintiff called the attention of the said foreman to the condition of the embankment, and expressed “his fear and apprehension that said bank was dangerous, and might at any minute fall on the men at work below” ; but that the foreman repeatedly, and particularly on the last-named day, assured the plaintiff that the bank was perfectly safe, and thereupon ordered the plaintiff to go into the trench to work therein, which order the plaintiff promptly obeyed, relying entirely upon the superior knowledge, skill, and experience, and the assurance aforesaid, of the said foreman.
The principal defenses stated in the answer were that the risks, if any, incident to the employment were assumed with knowledge thereof by the plaintiff, and that his injury resulted from his own negligence. The evidence on behalf of the plaintiff, and particularly his^own testimony, tended to prove the substan tial allegations of the petition. It appears that the plaintiff at different times expressed his fear that the bank might cave in, and that on the evening preceding the actual fall of a portion of the bank, which caused the plaintiff's injury, and which happened at a point about twelve feet from the east end of the excavation, the plaintiff had “bet the beer” with Bogardus, the foreman, that the bank would cave in that night. The following morning Bogardus came, while the men were pumping out the water which had gathered in the trench during the night, and he claimed that he had won the bet, as the bank had not fallen. Shortly after his arrival Bogardus said to the plaintiff and another man who worked with the plaintiff in the trench” “Get ready for the mud, boys” — meaning that they should put on their water-proof boots and go into the trench. They did so, and had barely begun work when the bank fell, causing severe and perhaps permanent injuries to the plaintiff. The point at which it fell was within a few feet of the place indicated by the plaintiff in speaking of the anticipated fall at the time the bet was made. Before going into the trench that morning the plaintiff remarked that he “rather dreaded that place,” and he stated in his testimony that he ‘ ‘ rather felt a little afraid of it yet.” There was testimony that, to the plaintiff’s expression of his fear, Bogardus responded, “Scott, you are foolish or out of your head.” The plaintiff also testified that at another time Bogardus assured him the bank was solid and safe.
On cross-examination, the plaintiff testified that he had had some experience in quarrying and laying stone and work of that kind, but which did not require excavating below the depth of two feet; that he had dug one well and assisted in digging others, the deepest of which was not oyer twenty-five feet, and which were dug in Franklin county, where the soil was of about the same character as that in which the trench was being made; that he had mined coal in Franklin county in drift work at a depth from fifteen to fifty feet below the surface, the exact depth not being stated; that he was a man of ordinary observation, and there was nothing to prevent his observing and becoming acquainted with the condition surrounding and affecting the work in the trench. It also appears that there was a difference of opinion among the men engaged in the work in question respecting its safety. At the conclusion of the evidence on behalf of the plaintiff, the defendants demurred thereto, and the demurrer having been overruled, they rested their case without the introduction of evidence, and requested the court to direct the jury to return a verdict in their favor. The request was refused. Verdict oand judgment were in favor of the plaintiff in the sum of $2000. One of the findings of fact is as follows :
“ Ques. If you answer question 1 in the affirmative, state whether or not plaintiff sustained any injuries at either or any place to which he had called the foreman’s attention as being dangerous. Ans. Yes.”
The principal point discussed by counsel for plaintiff in error is thus stated in their brief :
“The plaintiff was not entitled to recover because, by the terms of his employment, he assumed all the risks incident to the .business in the manner in which it was conducted; that his injury occurred in the performance of a risk which he assumed at the time of his employment; that no negligence was shown on the part of the defendant, and that the injury was due to his own negligence and want of care on his part.”
Counsel further say in their argument:
‘ ‘ The excavation proper at the time of the injury was from twelve to fifteen feet deep. He (plaintiff) was acquainted and familiar with the entire workings of the trench, having from time to time worked in all parts of it and assisted in making excavations. From the time of his entrance into the trench he became fearful lest the banks on either side would give away •and cave in and injury occur to him; It appears from his testimony to have been constantly on his mind. He was almost constantly grumbling and complaining about the likelihood or probability of the bank’s caving in. It was a subject of almost daily discussion and conversation between the men working in the trenches. He spoke to the foreman, Bogardus, about it, and frequently discussed the matter with fellow employees in the presence of Bogardus. It was his opinion that a cave-in would occur. It was the opinion, however, of Bogardus that there was no danger in that direction.”
The foregoing, facts and the admission of counsel for plaintiff in error show that a difference of opinion existed among those engaged in doing the work , in question concerning the risks incident thereto. The foreman, who possessed expert knowledge in the premises, assui’ed the - plaintiff, whose experience in work of that character was extremely limited, that the place of employment was a safe place, and, deriding the plaintiff’s expressions of fear, directed him to proceed with the work. In such a state of facts, it was within the province of the jury to pass upon the question as to the alleged negligence of the defendants in carrying on the work of excavating and the question as to the assumption by the plaintiff of the risks incident to that work and known to him. This case does not belong to the class called .“the gravel-pit cases,” where the work is at all times hazardous, and known to be such by all persons of ordinary intelligence. Here minds differed as to the safeness of the employment. The servant had misgivings concerning it, but the master, represented by the foreman, sought to allay those misgivings by positive assurances that the employment was safe and entirely free from danger. The servant, relying on such assurances, continued in the employment. The courts recognize a difference in the position of employer and employee under such circumstances.
‘ ‘ Master and servant do not stand on equal footing, even when they have equal knowledge of the danger. The position of a servant is one of subordination and obedience to the master, and he has a right to rely upon the superior knowledge and skill of the master, and is not entirely free to act upon his own suspicions of danger.” (Shortel v. City of St. Joseph, 104 Mo. 114, 16 S. W. 397—syllabus.)
The above case cites and follows the decision in Keegan v. Cavanaugh, 62 Mo. 230, in which one paragraph of the syllabus reads :
{‘ "Where a hod-carrier engaged at work in an excavation, having manifested some reluctance to descend, was ordered by his employer to go down, and the earth caved in upon and killed him, held, that the order Was an implied assurance that there was no danger; that the laborer properly relied upon the superior information of the master, and that the latter was liable ; that in such case the question of negligence was for the jury.”
In the opinion the court said:
“In this case, the evidence shows that Keegan, the laborer, was not without apprehension, but when one of his employers ordered him to go down, he did so promptly, upon the assurance implied in such an order that there Was no danger.”
It should be observed that in the foregoing case assurance of safety is held to have been implied in the order of the employer, while in the present case the assurance was given in most positive terms by. the foreman, representing the employer. In the case of Malcomb v. Fuller, 152 Mass. 160, 25 N. E. 83, one paragraph of the syllabus reads :
“ On the question of the employee’s care, it was competent for him to testify that after the superintendent told him there was no. danger in the work he believed him.”
In the case of Miller v. Union Pac. R. R. Co., 12 Fed. 600, 603, the plaintiff had been ordered into a position of danger by the foreman in charge of the work and had obeyed the order, believing it to be safe for him to do so. He was injured, and brought an action to recover damages. In the opinion it is said:
“There may be cases in which the court can say, as a matter of law, that a servant, receiving an order from his master or from a superior, is guilty of negligence in obeying it, but the present is not such a case. The law will rarely declare the act of obedience negligence per se. If the circumstances be such that men of ordinary intelligence may honestly differ as to the question of negligence, it must be left to the jury.”
In view of all the foregoing facts and decisions, it must be held that the trial court was warranted in overruling the demurrer to the plaintiff’s evidence and in giving the following instruction, which, although excepted to by the defendants, is not complained of in their brief :
‘ ‘ If you find from the evidence that the plaintiff was engaged at the work in the excavation, and that he expressed to Mr. Bogardus, the foreman, his fear or his opinion that there was danger that the earth might fall upon him while working there, and that Mr. Bogardus assured him that there was no danger, .and the plaintiff, relying upon the better judgment and superior experience and information of the foreman, continued to work in the trench, and so was injured by the earth falling on him as alleged, you will find for the plaintiff, provided you further find that ■the defendant’s servant in charge of the work was guilty of the negligence charged in the petition and which occasioned the injury.”
Complaint is made of the admission of the testimony of the' witness John Dowd, who testified that he was experienced in work like that in question ; that, from his experience, he was able to judge as to what was a safe and proper method of doing such work ; and that, in his opinion, the work was not being done in a proper manner. He stated that the wall of the excavation should have been made sloping or should have been shored to prevent its caving in. On cross-examination, he stated that his testimony was based upon what he saw, and that he was not testifying as an expert. Thereupon the defendant moved to strike out all his testimony in which he had stated his opinion concerning the character of the work, and the motion was sustained. Further examination of the witness was then made by the counsel for the plaintiff and by the court. Disclaiming to be an expert, he nevertheless stated that he understood that kind of work and felt confidence in his opinion concerning the same, and that he had special knowledge as to the proper method to be pursued to make the work safe, and that it was not being done in a proper manner. He' also testified that his opinion was based upon what he saw, and upon his experience as a section foreman in doing work of that character. Thereupon the entire testimony of the witness was again admitted. In admitting the testimony, the trial court made a statement, which appears in the record, to thd effect that the witness actually testified as aji expert in his direct examination, although he seemed to misapprehend the exact meaning of the word. We think the court ruled correctly in this matter. That the witness possessed expert knowledge in the premises is clearly shown by his testimony. Unacquaintance with the meaning of the term “expert” doubtless prevented his viewing himself as being so qualified. There was no dispute that the banks were not shored nor that one of them fell upon and injured the plaintiff. The witness having shown a personal acquaintance with the character of the trench and embankment, and with the manner in which the work was being done, as well as expert knowledge respecting that kind of work, it was proper to ask him whether it was being done in a correct and safe manner. The fact that the witness disclaimed being an expert will not preclude his testimony as such, where the evidence or circumstances show that he possessed the requisite qualifications. (Crow v. State, 33 Tex. Crim. Rep. 264, 26 S. W. 209.)
It is further' contended by counsel for plaintiffs in error that the finding of fact hereinbefore set out is contrary to and unsupported by plaintiff’s evidence. Since it appears that immediately before going into the trench and only a few minutes before the injury was sustained the plaintiff expressed his fears that a cave-in might occur, it must be held that there was some evidence tending to prove that he called the attention of the foreman to the particular place at which the injury occurred as being a dangerous place. But counsel contend further, that if the finding can be upheld the general verdict cannot be, since the finding shows both general and particular knowledge on the part of the plaintiff respecting the hazards of the employment. This phase of the matter has already received our attention. We have discovered no reversible error in the record, and the judgment of the district court will be affirmed.
|
[
-12,
104,
-4,
-67,
-6,
106,
58,
-70,
113,
-32,
-91,
-45,
-19,
-53,
8,
99,
-9,
61,
-44,
99,
-10,
-77,
23,
-21,
-46,
-13,
113,
-51,
48,
122,
-28,
-41,
76,
50,
10,
-43,
-26,
72,
65,
30,
-50,
-83,
-88,
-24,
25,
32,
56,
126,
96,
94,
49,
30,
115,
42,
28,
-21,
41,
44,
107,
61,
-48,
-80,
-118,
-123,
127,
16,
33,
6,
-98,
7,
-40,
30,
-104,
53,
1,
-4,
114,
-74,
-126,
-12,
33,
-7,
8,
114,
102,
33,
21,
-49,
76,
-40,
30,
-2,
-113,
-89,
-111,
0,
-127,
110,
-66,
-99,
-12,
4,
38,
126,
-31,
77,
89,
44,
7,
-117,
-80,
-125,
-49,
124,
-107,
83,
-53,
-85,
32,
96,
-50,
-94,
77,
7,
123,
-105,
-97,
-3
] |
The opinion of tbe court was delivered by
Schoonover, J.:
This action was brought in the district court of Reno county to foreclose a mortgage given by William Stout on certain real estate to secure his note for $600. Prior to the maturity of the note, Stout sold the mortgaged property to Frank McKee and C. Bloom, who assumed and agreed to pay the mortgage indebtedness as part of the purchase-price.
After the note became due, McKee and Bloom entered into an agreement, by which the then owner and holder of the note agreed to extend the time of payment five years; McKee and Bloom agreeing to pay interest according to the terms of certain extension coupon notes. A short time after the execution of the extension agreement, McKee and Bloom sold the property in question to the National Bank of Commerce. The bank held the property for over five years, and then sold and conveyed it to J. E. Conklin, plaintiff in error. This sale and conveyance occurred more than eleven years after the execution of the note and mortgage, and more than six years after it became due by its terms. Nothing appears in the record showing that any interest payment was made on the mortgage after the sale by McKee and Bloom.
A short time after plaintiff in error purchased the property this action was brought'. Plaintiff in error appeared and answered, pleading the statute of limitations. The case was tried to the court, which found, among other things, that the mortgage was a valid and subsisting lien upon the property as to the owner, J. E. Conklin, that McKee and Bloom were liable upon their contract of assumption, and that the action was barred as to Stout, the mortgagor. Judgment was entered upon the findings and Conklin brings the case here. McKee and Bloom have also filed a cross-petition in error, complaining of the judgment and asking that the cause be reversed as to them.
As we view the case, the only question to be determined is, Was the extension agreement executed at the request of McKee and Bloom sufficient to prevent the running of the statute of limitations ? “If the time of payment of a mortgage be extended, the right to foreclose is, of course, suspended until the expira tion of the extended term.” (2 Jones, Mort. § 1190.) The statute would, therefore, not begin to run until the expiration of the extended term. But in order to prevent the statute, from running, the agreement must be founded on a good consideration and be otherwise valid.
By the terms of the extension agreement, McKee and Bloom were to “keep the loan for a term of five years, and to pay interest upon the principal of said debt according to the tenor and effect of certain extension coupon notes.”
In the case of Holmes et al. v. Boyd, Cashier, 90 Ind. 332, the court held that “Neither the payment of interest already accrued, nor a promise to pay such interest as may thereafter lawfully accrue upon a note, will afford a sufficient consideration for an agreement to extend the time of payment of the note.”
There is nothing in the record to show what rate of interest was to be paid upon the note during the extended term. Reference is made in the extension agreement to certain extension coupon notes, but these notes do not appear in the record. We concede that if McKee and Bloom had agreed to pay a higher rate of interest during the extended term than that named in the note, the amount of interest in excess of the amount named in the note would constitute a sufficient consideration, but there is nothing to show that an increased rate was agreed upon.
Plaintiff alleges in his petition that by its terms the note sued upon was to bear six per cent, interest, payable semiannually until maturity, after which it should bear interest at the rate of twelve per cent, per an num. The note itself does not state the rate of interest, but reference is made in the note to certain interest coupons thereto attached. These coupons do not appear in the record, but we suppose that they were made for the amount of interest that would be due semiannually at six per cent., accepting as true the allegation of the petition that six per cent, was the rate agreed upon.
Plaintiff alleged that coupon No. 10, the last of the coupons claimed to have been executed under the extension agreement, had not been paid. Judgment was asked for the amount of the principal, with interest at the rate of twelve per cent, from date of maturity to date of judgment, and for the further sum of eighteen dollars interest from January 1, 1896, to July 1, 1896, being the last six months of the extended term. The interest on $600 for six months at six per cent, amounts to eighteen dollars. It therefore appears that the rate of interest for the extended term was six per cent., the same rate provided for in the original agreement. Thus, from plaintiff’s own allegations, it appears that McKee and Bloom did not agree to pay a greater rate of interest than was provided for in the original agreement.
There is no evidence to show that they assumed any new obligation, made advance payments of interest or did any other acts that would constitute a sufficient consideration for the agreement to extend the time of payment. McKee and Bloom were bound already to pay the note with a rate of interest at least as high as six per cent., and this promise to do what they were already bound for was invalid as a new promise. (Schuler v. Myton, 48 Kan. 282, 29 Pac. 163.)
One of the leading cases cited by counsel for defendants in error is McLane v. Allison, 60 Kan. 441, 56 Pac. 747; but as this case turned upon the payment of interest by a grantee of the mortgagor as an acknowledgment of the existence of a mortgage lien, and as there was no evidence in this case that any interest payments were made after the extension agreement was executed, the case cited is not applicable.
We think that the extension agreement was without consideration, and, this being true, it was ineffectual to prevent the running of the statute of limitations. The judgment of the district court is reversed.
|
[
86,
126,
-103,
46,
42,
96,
40,
-102,
74,
-96,
-90,
91,
-23,
-64,
20,
109,
-9,
105,
-27,
112,
53,
-77,
38,
64,
-45,
-77,
-47,
-43,
-95,
-35,
-12,
87,
76,
36,
-56,
85,
-30,
-22,
-37,
-44,
14,
-121,
9,
100,
-39,
2,
52,
115,
16,
12,
33,
-19,
-29,
39,
29,
-54,
105,
42,
-55,
61,
-48,
-8,
-85,
-115,
127,
21,
-127,
7,
-100,
67,
-62,
-114,
-112,
53,
9,
-24,
82,
54,
-58,
84,
79,
11,
40,
38,
98,
32,
65,
-19,
-28,
-104,
6,
84,
-81,
-89,
-74,
88,
42,
103,
-66,
31,
92,
17,
-52,
-2,
-26,
-124,
29,
-24,
28,
-54,
-42,
-45,
-113,
118,
-104,
-118,
-2,
7,
49,
112,
-49,
-88,
93,
70,
59,
-37,
14,
-40
] |
The opinion of the court was delivered by
Wells, J.:
The facts over which this controversy arose seem to be about as follows: John J. LaMar, who was the owner of the land described, executed a real-estate coupon bond for $1200 to Henry Dickinson, payable in New York, three years after date, with eight per cent, interest, in semiannual instalments, and bearing date December 1,1891. He also executed a mortgage upon said land of even date with the bond, acknowledged the same on the 21st day of March, 1892, and on the same day it was duly filed for record. The bond was assigned by Henry Dickinson in blank, and onthelBth dayof April, 1892,he assigned themortgage, in writing, duly acknowledged, to the Farmers’ Loan and Trust Company, of New York, trustee for the debenture holders of the J. B. Watkins Land Mortgage Company. This assignment was filed for record on the 23d day of August, 1897. On the 19th dayof January,1898, the Farmers’ Loan andTrustCompany, as trustee,by its second vice-president, assigned said mortgage and the indebtedness thereby secured to J. B. Watkins, M. Summerfield, and J. F. Switzer, said assignment being acknowledged. The plaintiff’s petition in the district court and the exhibit thereto show that this last assignment was filed for record on January 27, 1898, but the evidence, without contradiction, shows said filing to have been made on the 27th day of July, 1898. In June, 1893, John J. LaMar conveyed the property in controversy by deed, duly executed and recorded, to Cyrus F. Emery, and on January 28, 1898, Cyrus F. Emery and wife conveyed it to B. P. Waggoner. On the 17th of February, 1898, the plaintiffs in error began this action against the defendants in error for judgment on the note and a foreclosure of the mortgage referred to. The only answering defendant, B. P. Waggoner, answered: First, admitting the execution of the bond, note and mortgage sued on, but denying every other allegation not therein-after expressly admitted; second, setting up defendant Waggener’s chain of title and possession thereunder; third, alleging that the action was barred by the statute of limitation ; that the defendant LaMar never paid any taxes after the execution of said note, and did not cause the property to be insured, nor pay interest according to the requirements of said mortgage and note, and that by reason thereof the whole sum became due and payable on the 2d day of January, 1892, and that no action was begun thereon for more than five years thereafter; fourth, denying that the plaintiffs are the real parties in interest, and alleging that they took the note and mortgage sued on with knowledge that the same was barred ; and fifth, alleging that the mortgage sued on is a cloud upon his title.
This answer was verified. A verified reply was filed, setting up, first, the removal of the defendant LaMar from the- state about the 1st day of May, 1892, and inability to make personal service on him in the state; second, that the note and mortgage in controversy were made to pay off a former lien which matured on December 1, 1891, and were dated at that time at the request of the maker, but were in fact executed on March 21, 1892; third, that under the terms of said bond it did not mature until five years after its date, no election having been previously made as provided therein; fourth, denying Waggener’s title ; and fifth, a general denial.
Upon the issues thus formed the case was tried to the court, and at the conclusion of the plaintiff’s evidence a demurrer thereto was sustained. The, defendant Waggener then introduced evidence of his title and possession, and judgment was rendered for the defendant Waggener substantially as prayed for, .and the case is brought here for review.
The defendant in error B. P. Waggener moves this court to dismiss the petition in error for the reasons: That the case-made as served, not having been signed by plaintiffs or their counsel, is not a case-made within the contemplation of the statute ; and that the amendment allowed by the judge to the case-made after the time for suggesting amendments had expired was unauthorized, and destroys the validity of the case-made. This motion cannot be sustained. There is no law requiring the party making a case-made to sign it. The fact that he served it is sufficient, and the certificate of the judge, attested by the clerk under the seal of the court, is what finally gives it validity as a case-made; and while the amendment allowed by the judge at the time of settling the case was unauthorized, it does not destroy the validity of the entire case-made. It is contended by the plaintiffs in error that said amendment was proper, and that the judge in settling a case-made has the power on his own motion, or at the suggestion of either party and before signing such case-made, to make such alterations in the case-made as may be necessary to make it speak the truth. This is true in a limited sense only. The judge must not let the record speak an untruth, and, as held in Gulf Rld. Co. v. Wilson, 10 Kan. 105, and in Elliott v. Railway Co., 8 Kan. App. 191, 55 Pac. 490, he has the right, when both parties are present, to allow additional matters to be inserted ; but it has not been held by the supreme court or by this court that a party can serve a case-made upon his opponent and procure his consent that the same as prepared may be settled and signed, and then, in the absence of the other party, and without notice to him, cause an important addition to be made thereto. Such in our opinion would be a very dangerous precedent to establish. The motion to dismiss will be overruled and the amendment complained of disregarded.
The next question requiring attention is : Does the record show that it contains all of the evidence to which the demurrer was sustained?
After noting the appearance for trial, the record proceeds: “And the following testimony was introduced and proceedings had, to wit: By R. W. Turner, attorney for plaintiff: Now offers in evidence the application. . . .” Other papers were offered, in about the same language, all of which were read to the jury, over the objection of the defendant. After the copy of the last paper offered by the plaintiffs, and without any connecting words, follows, on the next page: “Justice D. Linn called on the part of the plaintiff; after being duly sworn to testify the truth,, the whole truth, and nothing but the truth, was examined by R. W. Turner, and testified as follows.” Then follows his examination by questions and answers, after which another witness was introduced in substantially' the same language. The record does not show that either witness was excused, -and there was nothing to indicate that their examination was completed; but at the close of the answer to the last question appears the following: “ By R. W. Turner : Plaintiff rests. By B. P. Waggener: We demur to the evidence. By the court: Demurrer sustained as to B. P. Waggener. By R. W. Turner : We except to the ruling of the court.” There is nothing in the record of the evidence to indicate the continuity of its several parts, or their relation in point of time to each other, or to the interposition of the demurrer or the action of the court thereon, except that they follow each other therein, and, as it would do no violence to the record to assume that evidence was offered and admitted not copied in the case, we must hold that it does not appear that all of the evidence is contained therein. But it has been held, in Merket v. Smith, 33 Kan. 66:
‘ ‘ Where an action is tried by the court without a jury, and the defendant interposes a demurrer to the evidence after the plaintiff closes his case, the court cannot weigh conflicting testimony ; and if in such a case the testimony presented in the record supports the plaintiff’s cause of action, and it can only be answered by contradictory or conflicting evidence, the supreme court will declare the law upon the testimony presented in the record, although it does not affirmatively appear therein that all of the evidence upon which the district court acted is before it.”
We are therefore authorized to examine the evidence appearing in the record, and if it is sufficient to sustain the claim of the plaintiff, then the demurrer should have been overruled.
As stated by the plaintiffs in error, under the petition, in the absence of admissions, it would have been necessary for the plaintiff to prove the following facts: (1) The execution of the note or bond sued on. (2) The execution of the mortgage sought to be foreclosed. (3) The assignment of the mortgage from Henry Dickinson to the Farmers’ Loan and Trust Company, of New York. (4) The assignment of the mortgage by the Farmers’ Loan and Trust Company to the plaintiffs. Of these the first three are admitted; the fourth was not expressly admitted, and we think under the pleadings it was denied ; and that was undoubtedly the view of the parties on the trial, as they attempted to prove it, as is shown on pages 48, 49 and 50 of the record.
It is contended by the plaintiffs in error that this evidence having been admitted, the court was not at liberty to disregard it in considering a demurrer to the evidence. In support of this, plaintiffs in error refer to some very strong authorities; but as our supreme court, in Gillett v. Insurance Co., 58 Kan. 108, 36 Pac. 52, has decided exactly to the contrary, we can hardly support the contention. The only proof offered of plaintiffs’ title to the cause of action was the assignment copied on pages 49 and 50 of the record, and it is contended by the defendants in error that said assignment is void for want of any showing of , othority in the assignor to make it. But we shall not consider this question, as under the decision in Myers v. Wheelock, 60 Kan. 747, said assignment not having been recorded within six months after its execution, it could not be admitted or considered in evidence. But it is contended by the plaintiff in error that the record is in fault as to the time of the filing of said assignment, and that in fact it was filed on January 27, as is shown by the copy of the mortgage attached to the petition. The correctness of the petition in regard to this assignment was denied under oath, and it had to be proven to entitle plaintiff to judgment; and as there is a long line of decisions of the supreme court holding that the case-made cannot be supplemented or amended, we must hold, for that reason, that there was no legal evidence of such assignment, and the demurrer to the evidence was properly sustained for that reason.
The only other question requiring attention at our hands is, Was defendant Waggoner entitled, under the pleadings and the evidence, to a decree quieting his title to the land' in controversy ? It is contended by the plaintiff in error that no proof of payment of the mortgage was made or authorized by the pleadings, and that, under the familiar rule, “He who seeks equity must do equity,” the title could not be quieted. The southern department of the Kansas court of ap peals has held (Bank v. Stewart, 8 Kan. App. 22, 54 Pac. 16) that, under our statutory provision, a person in possession can have his title quieted as against a mortgage not paid but upon which the statute of limitations has run, and, although we have some doubts of the correctness of this decision, we have concluded to adopt it as the law upon this subject. The judgment of the district court will be affirmed.
McElroy, J.,concurring; Mahan, P. J., dissenting ^
|
[
117,
111,
-15,
62,
74,
64,
46,
-104,
96,
-96,
-89,
119,
-23,
-41,
4,
45,
-75,
41,
-43,
74,
69,
-78,
23,
39,
-45,
-13,
-39,
-35,
-79,
93,
-26,
93,
12,
52,
-62,
-35,
-26,
-22,
-25,
86,
-114,
-119,
11,
108,
-35,
64,
52,
63,
82,
73,
21,
-84,
-13,
36,
29,
-6,
109,
46,
75,
61,
80,
-8,
-117,
-116,
127,
7,
-112,
103,
-104,
1,
-54,
-116,
-112,
49,
-127,
-24,
123,
-92,
-58,
116,
5,
-117,
8,
34,
102,
17,
101,
-19,
-30,
-104,
39,
-35,
-115,
-90,
-29,
88,
11,
32,
-66,
-99,
125,
0,
-89,
-2,
-18,
-115,
28,
108,
5,
-50,
-74,
-127,
15,
56,
-102,
-61,
-5,
3,
-80,
85,
-49,
-94,
93,
102,
86,
19,
14,
-8
] |
The opinion of the court was delivered by
Milton, J.:
This action was brought by the plaintiff in error against the defendant in error to recover the possession of certain personal property in which the plaintiff claimed a special ownership under a chattel mortgage executed by the Arkansas City Manufacturing Company and delivered to the plaintiff, to secure an indebtedness evidenced by a promissory note for $2500. The mortgage was duly recorded on March 31, 1893, the day following its execution and delivery, and was duly renewed in March, 1894, by affidavit. In his answer the sheriff justified under an order of attachment issued out of the district court of Cowley county on December 13, 1894, in an action then pending wherein John Leech was plaintiff and W. M. Sleeth, doing business as the Arkansas City Manufacturing Company, was defendant, and averred that the property remained continuously in his possession until the 21st day of February, 1895, when he sold the same at public sale under the order of the court and thereafter duly returned such order of sale with the report of his proceedings thereunder. The answer also averred that the indebtedness evidenced by the note and mortgage under which the plaintiff claimed was not bona fide; that the manufacturing company did not owe the debt to the First National Bank; that the mortgage was given for the purpose of covering up the property of the manufacturing company, in order to hinder and delay the creditors of Sleeth, who was the principal owner of the property of the company and also at that time president of the plaintiff bank ; and that by reason of the fraud of the plaintiff it was not entitled to recover.
Before the trial the answer was amended by the addition of an averment to the effect that Leech had made a loan of $1000 to the manufacturing company, and that prior to the date when the loan was made Leech 'had on deposit in the plaintiff bank the sum of $2000, of which fact Sleeth, by reason of his connection with the bank as its president, had knowledge ; that Sleeth requested Leech to loan the- $1000 to the manufacturing company; that in order to induce Leech to make the loan, Sleeth represented that the bank was interested in the manufacturing company and in fact was a partner with Sleeth in that company, and that the loan was made upon such inducement. The plaintiff’s reply contained a general denial only.
The evidence was conflicting, but that on behalf of the plaintiff tended to prove that on and for several years prior to May 8, 1893, W. M. Sleeth and one Pearson were partners, under the name of the Arkansas City Manufacturing Company, and engaged in the manufacture of furniture in Arkansas City ; that when the mortgage under which the bank claimed was delivered Sleeth was president of the bank, and the manufacturing company was indebted to it in a large sum ; that in April, 1893, John Leech came to Arkansas City and was “shown around” by his old friend and former neighbor, Sleeth, who pointed out houses and lands which he claimed to own; that on May 8 thereafter Sleeth induced Leech to lend the manufacturing company the sum of $1000, the company giving its note therefor, payable six months after date, signed by the manufacturing company, “per Frank Theaker, manager,” and indorsed by Sleeth. Leech testified that before this loan was made Sleeth promised him a place in the factory, and stated that it had no outside debts ; that, in answer to a question asked by Leech, Sleeth stated that the Arkansas City Manufacturing Company consisted of himself and the First National Bank of Arkansas City; and that the last statement was the inducement that caused the said loan to be made. Some months after this loan was made, a chattel mortgage covering the property claimed by the plaintiff was given by the manufacturing company to Leech, at his request, to secure the payment of the note. The court, over the objection of the plaintiff, gave the following instructions:
“III. The evidence is undisputed thatW. M. Sleeth, the principal owner or manager of the manufacturing company, was also the president of the plaintiff bank, and you are instructed that notice to the president, Sleeth, is notice to the bank. Whatever his knowledge is or was of any of the matters in controversy in this case was of necessity the knowledge of the bank.
“IV. If you find from the evidence in this case that the First National Bank, plaintiff in this case, was an actual partner or part owner of the manufacturing company, and by the act of its president induced Leech to part with his money, and to put it into that company, £nd got the benefit of it, then they cannot rely upon %ieiv mortgage in this case to the exclusion of Leech. That you are to determine from the evidence in this case.”
The court also charged that the real question for the jury to determine was whether the indebtedness evidenced by the plaintiff’s note and mortgage was bona fide, and that if they found that the manufacturing company actually owed the bank the sum stated in the note and mortgage, then their verdict should be for the plaintiff. Each party submitted three special interrogatories to the jury, and all were answered positively. To the plaintiff’s interrogatories the jury answered : (1) That the manufacturing company, by W. M. Sleeth, gave the note involved in this action to the bank; (2) that at the time the note was given the manufacturing company did not owe the bank the sum of $2500, as evidenced by the note ; and (3) that the manufacturing company gave the chattel mortgage mentioned in the plaintiff’s petition “to secure said promissory note and indebtedness.”
To the defendant’s interrogatories the jury answered : (1) That the plaintiff bank had knowledge os notice of the manner in which Sleeth obtained the loan from Leech; (2) that the plaintiff received the benefit of Leech’s money so loaned; and (3) that it was a partner of Sleeth in the manufacturing company.
Thereupon the plaintiff filed a motion to set aside the second finding based on plaintiff’s interrogatories and the second and third findings based on the defendant’s interrogatories, the ground of the motion being that such findings were contrary to the evidence and untrue, and were returned by the jury on account of their bias and prejudice. The court sustained the motion as to the first finding complained of and overruled it as to the other findings. .
A careful consideration of the questions discussed by counsel leads us to conclude that the trial .court erred in giving the instructions hereinbefore quoted, in overruling the plaintiff’s motion to set aside the third finding in answer to the defendant’s interrogatories, and in overruling the motion for a new trial.
1. Instruction No. 3, to the effect that notice to Sleeth, the president of the plaintiff bank, was notice to the bank, and that his knowledge was its knowledge as to any of the matters in controversy in this case, was erroneous, for the reason that the evidence' concerning the transaction, in which the loan was made by Leech to the manufacturing company fails to show that Sleeth in any way represented the bank. He was acting for himself in the interests of his own separate enterprise, and not as the agent of the bank, and in fact it is not claimed that he pretended to represent the ba,nk therein. The answer does not allege that the bank was a partner with Sleeth in the manu factoring company. The allegation is that Sleeth so represented, and that the loan was made because of such representation. It follows that the knowledge of its president was not the knowledge of the bank. “The knowledge acquired by the officers or agents of the corporation, while not acting for the corporation, but while acting for themselves, is not imputable to the corporation.” (4 Thomp. Corp. § 5254.) In the case of Wickersham v. Chicago Zinc Company, 18 Kan. 481, the court held that “neither the acts nor knowledge of an officer of a corporation will bind it in a matter in which the officer acts for himself, and deals with the corporation as if it had no official relations with Mm.”
2. For the reasons already stated, the fourth instruction was clearly improper. It was neither alleged nor testified to that the First National Bank was a partner in the manufacturing company. That the jury were influenced by this instruction is shown by the special finding. Since the instruction was not warranted by either pleadings or evidence, it must be regarded as erroneous.
3. The jury found that, at the time the note was given by the manufacturing company to the plaintiff bank, the company did not owe the bank the debt evidenced by the note. On motion of plaintiff, this finding was set aside as being contrary to the evidence. The court had instructed the jury that if they found that the debt in question was bona fide, and that the manufacturing company actually owed the sum to the bank, then their verdict should be for the plaintiff. As the court held that the finding was contrary to the evidence, it would seem to have been proper to hold that the general verdict was found in disregard of the instruction just referred to. We think the motion for a new trial should have been granted on account of the errors pointed out above.
Whether or not the inducement which Leech claimed led him to make the loan to the manufacturing company—that is, the representation that the bank was a partner in the manufacturing company—was an inducement upon which he had a legal right to rely, is a question which counsel have discussed at length in their brief. In our view, the controversy on this point is more interesting than important, for the reason hereinbefore stated, that it was not alleged in the defendant’s answer nor shown in any way by the evidence he presented, that the bank was actually a partner in the manufacturing company.
The judgment of the district court will be reversed and the cause remanded for a new trial.
|
[
112,
110,
-8,
-66,
74,
-32,
40,
-102,
81,
33,
-91,
-9,
103,
-49,
29,
113,
99,
121,
-12,
105,
87,
-77,
7,
107,
-46,
-77,
-7,
-43,
-79,
77,
-28,
-34,
76,
48,
-62,
29,
102,
-56,
-63,
-44,
-114,
-127,
9,
100,
-35,
72,
52,
58,
96,
10,
117,
-98,
-13,
39,
29,
74,
105,
40,
97,
61,
112,
-8,
-102,
-115,
127,
22,
-77,
6,
-116,
7,
-6,
14,
-104,
49,
-127,
-24,
122,
-74,
-122,
-12,
77,
-39,
9,
118,
98,
0,
29,
-17,
-24,
-100,
14,
-66,
-115,
-90,
-112,
96,
10,
73,
-66,
-99,
126,
80,
7,
-10,
-17,
-100,
88,
44,
7,
-37,
-74,
-109,
-113,
52,
-103,
3,
-1,
-81,
60,
117,
-51,
34,
93,
6,
91,
27,
-106,
-11
] |
The opinion of the court was delivered by
Dennison, R. J.:
This action was commenced before a justice of the peace of Labette county, and judgment rendered in favor of the defendant in error against one of the plaintiffs in error, Frank Nutt, who appealed to the district court of said county. The case was referred to a referee, who found against Frank Nutt in the sum of ninety-five cents and costs. The answer óf Frank Nutt alleges that the defendant in error is indebted to him in the sum of $286.80.
The plaintiffs in error allege several assignments of error in their brief and petition in error.
The referee refused to permit Huldah T. Nutt to testify, because she was the wife of Frank Nutt. It is claimed that she was competent because she was a party to the suit in the justice court and appealed or intended to appeal to the district court.
Frank Nutt filed an answer and counter-claim before the justice of the peace and Huldah T. Nutt filed a general denial. ’ Judgment of $42.33 was rendered by the justice of the peace against Frank Nutt, but no judgment was rendered against Huldah T. Nutt. There being no judgment against her and her answer being a general denial, she had nothing to appeal from. It is not claimed that she is being damaged by this ruling. The evident purpose seems to be to make her competent as a witness for Frank Nutt. We see no error in the ruling.
It is contended that the referee erred in not finding specially upon certain questions submitted to him. In order to raise this question, the court should have been requested to refer the report back to the referee with direction to make such additional findings. Failing to do so, we cannot review the ruling of the referee.
It is seriously contended that the court erred in overruling the motion for a new trial pro forma. Ordinarily this would be a serious and reversible error, but is it so in this case ? The journal entry of judgment recites:
“Now, on this 1st day of June, A. n. 1895, this cause came on for hearing on the regular call of the docket, upon the motion of the defendants to set aside the report of the referee heretofore made in this action, and upon the motion of the plaintiff to confirm said report and for judgment in accordance therewith. The plaintiff appeared by J. W. Iden, his attorney, and the defendants by F. H. Atchinson, their attorney; and after hearing the motions, the argument of the respective counsel, and being fully advised in the premises, the court doth overrule and deny the motion of the defendants to set aside the report of said referee, to which ruling and decision of the court the defendants at the time duly excepted and except; and the court sustained the motion of the plaintiff; and it is ordered by the court that the report of said referee heretofore made and filed herein be and hereby is confirmed and approved.”
On June 3 the defendants below filed their motion to set aside the report of the referee and the confirmation thereof, and to grant a new trial, and the following language appears in the journal entry overruling such motion: “The defendants appeared by F. H. Atchinson, their attorney, and the plaintiff appeared not, either in person or by attorney; and without argument or consideration the court doth overrule and deny the motion.”
It is well settled by the courts of this state that the trial court errs in overruling a motion for a new trial pro forma, and the error is fatal. In the case at bar the reason for the rule fails ; therefore the rule fails. Our supreme court has said, in The State v. Bridges, 29 Kan. 138:
‘ ‘ The motion to set aside the verdict and for a new trial embraced, among other grounds, ‘that the verdict was not sustained by sufficient evidence.’ The district judge did not approve of the verdict of the jury, as is usually done by trial courts in similar cases when such a motion is overruled, but expressly announced that he overruled the motion pro forma, and declined to look into the evidence or pass upon its sufficiency. This was serious and grievous error. It was a refusal on the part of the trial court to perform its bounden duty, alike unjust to this court and the appellant. When a verdict is challenged upon the ground alleged in this case, the judge, who has the same opportunity to hear and see the witnesses as the jury, should declare his approval or disapproval of the verdict, and if he refuses to do this by overruling the motion proforma, and thereby attempting to transfer the whole question to the supreme court, he trifles with the sacredness of his duty. A party is deprived by such action of a review and consideration of the evidence by the court hearing and seeing the witnesses. This court does not have the same opportunity as the trial judge for forming a just opinion of the credence to be placed in the various witnesses, as testimony on paper is not like testimony from living lips. Even in a civil case, when the judgment of a trial judge tells him that the verdict is wrong, that, whether from mistake, or prejudice, or other cause, the jury have erred and found against the fair preponderance of the evidence, then no duty is more imperative than that of setting .aside the verdict and remanding the question to another jury. (Railroad Co. v. Kunkel, 17 Kan. 145.)”
The report of the referee occupies the same position as the verdict of a jury, so far as this question is con cerned, and, when the court passed upon the motion to set aside the report of the referee, it acted after argument and being fully advised in the premises.
We think the record fully shows that the court considered all the questions which were necessary to sustain the report of the referee.
Some other questions are raised relating to the evidence supporting the findings of fact made by the referee, but as there was some evidence to sustain them, and they were properly approved by the trial court, we cannot consider them.
The judgment of the district court is affirmed.
|
[
-14,
-20,
-27,
-66,
42,
-96,
34,
11,
81,
33,
-90,
87,
-87,
-33,
72,
63,
50,
45,
85,
107,
-58,
-73,
23,
-31,
-46,
-13,
-15,
-59,
-79,
76,
-12,
-36,
72,
56,
10,
-43,
102,
66,
-59,
20,
-114,
-122,
41,
-56,
-39,
108,
56,
57,
22,
79,
49,
-82,
-29,
42,
29,
-61,
-21,
44,
-3,
-71,
64,
-112,
-118,
-123,
77,
6,
49,
55,
-98,
-121,
88,
56,
-104,
49,
2,
-8,
51,
-90,
-126,
84,
41,
-71,
13,
126,
102,
1,
28,
111,
-72,
-88,
7,
55,
-99,
-90,
18,
68,
107,
73,
-74,
-99,
53,
16,
39,
-4,
113,
13,
29,
108,
11,
-50,
-108,
-79,
-113,
54,
-110,
-57,
-13,
3,
22,
113,
-115,
-32,
92,
70,
19,
51,
-97,
-66
] |
The opinion of the court was delivered by
McElroy, J.:
This proceeding was instituted by Harry L. Heaton filing in the probate court of Decatur county his petition to purchase certain school lands, viz. : The northwest quarter of section 10, township 2 south, of range 28 west, in Decatur county. The lands had been properly appraised. Heaton claimed a right to purchase the premises as a settler. At the time set for the hearing, the petitioner appeared and offered proof in support of his right to purchase the premises by virtue of his settlement and improvements. The county superintendent, I. K. Huber, appeared in person and protested against the allowance of the proof and prayer of the petition. A hearing was had, and the probate court allowed the proof and application to .purchase. In due time the county superin tendent filed his notice, on behalf of the state, of an appeal from the judgment of the court.
When the case was called for trial, at the October, 1898, term of the district court, the county attorney J. F. Peters filed his motion to dismiss the appeal for the reasons : (1), That no bond had been filed or given as an appeal or cost bond; and (2) that the county attorney had not been consulted at any time about the bringing or conducting of the case; that he had not neglected or refused to bring the case, and that he had not given permission to any one to bring or conduct the case. A hearing was had before the court upon the motion. The trial court found that the proceedings in the probate court and the appeal to the district court were nominally in the name of the state, but were really in the interest of one A. Y. Loy, a settler upon the same tract of land; that the county attorney was not consulted either as to the filing of the protest or in the matter of the appeal; and that Loy was the party beneficially interested in the protest and appeal. Thereupon the court made an order that unless Loy should give bond for costs the appeal would be dismissed. No bond being offered as required, the court sustained the motion and dismissed the appeal. The county superintendent filed his motion for a new trial, which was overruled, time was given to make and serve a case-made, and the record is presented to this court for review.
The only question presented for consideration by the record and assignments of error is as to whether the court erred in sustaining the motion of the .county attorney and in dismissing the appeal.
No question is made as to the sufficiency of the petition. In form and substance it complies with the provision of the statute.
The provisions of the statute in relation to the hearing upon petition for the purchase of school lands by settlers, in the probate court and upon appeal to the district court, and the manner of procedure therein, together with the provisions relating to the appearance and conduct of suits by the county attorney, are section 5, chapter 122, Laws of 1876 (Gen. Stat. 1899, § 6143), and section 2, chapter 89, Laws of 1892.
In this action, it was perhaps the duty of the county attorney to appear before the probate court, and afterward in the district court. But there was no authority for the dismissal of the appeal in this case for the reasons designated by the county attorney. The law does not require an appeal or cost bond where the appeal is taken by the county superintendent, nor is such officer required to notify the county attorney at any particular time or place concerning such appeal. Upon the other hand, it is very evident that the county attorney had notice that the action was pending ; otherwise he would not have appeared with his motion to dismiss.
The law expressly states that the probate judge shall transmit to the clerk of the district court a certified transcript of the record and proceedings relating to the cause, together with the original papers in his office, and the district court shall have jurisdiction of the cause, and shall proceed' to hear, try and determine the same anew, without regard to any error, defect or other imperfection in the proceedings of the probate court. It is evident to our minds that it was the duty of the trial court in this case to proceed to hear the testimony on' behalf of the petitioner, together with any testimony offered by the county superintendent or county attorney, and dispose of the matter upon its merit. There was no sufficient reason set out in the motion of the county attorney for the dismissal of the appeal.
The judgment is reversed, and the cause remanded with direction to the trial court to overrule the motion to dismiss and for further proceedings in accordance with the opinion herein expressed.
|
[
116,
108,
-76,
-100,
10,
96,
74,
-102,
75,
49,
96,
95,
41,
-38,
9,
33,
-5,
45,
65,
107,
-53,
-78,
82,
65,
-48,
-5,
-41,
-51,
49,
-52,
-9,
-41,
76,
36,
-118,
85,
-58,
-24,
-57,
-42,
-114,
5,
-69,
76,
-45,
-32,
52,
45,
50,
-113,
117,
46,
-29,
46,
93,
-61,
105,
46,
-37,
41,
25,
-8,
-82,
-121,
-3,
7,
-111,
6,
-120,
-127,
-120,
58,
-112,
49,
-128,
-24,
91,
-122,
-106,
-44,
13,
-103,
40,
110,
71,
11,
-36,
-17,
-24,
-56,
15,
30,
45,
-90,
-125,
25,
99,
68,
-106,
-103,
121,
80,
7,
118,
-18,
4,
92,
108,
45,
-113,
-106,
-111,
-49,
60,
-110,
19,
-45,
33,
48,
81,
-49,
-94,
92,
-62,
50,
27,
-118,
-71
] |
The opinion of the court was delivered by
Mahan, P. J.:
The motion to quash went to the entire information. If either count charged an offense the motion was properly denied. The supreme court of Massachusetts, in Carter v. Andrews, 16 Pick. 6, says:
“Whenever words have the slanderous meaning alleged, not by their-own intrinsic force, but by reason of the existence of some extraneous fact, this fact must be averred in a traversable form, which averment is called the ‘inducement.’ There must then be a colloquium averring that the slanderous words were spoken of or concerning this fact. Then the word ‘meaning’ or ‘innuendo ’ is used to connect the matters thus introduced by'averments and colloquia with the particular words laid, showing their identity and drawing what is then the legal inference from the whole declaration, that such was, under the circumstances thus set out, the meaning of the words used.”
It is well-settled criminal law that an innuendo cannot take the place of such allegations of inducement. Mr. Bishop, in section 748 of his work on Criminal Procedure, in speaking of innuendo, says: “Its office is limited strictly to the explanation thus indicated ; for it cannot add to or change or explain the previous statements, which must be sufficient as to the facts attendant on the libelous publication, without drawing anything from the innuendo. It is not, therefore, a matter upon which evidence can be introduced to sustain it at the trial.” The same rule is announced in State v. Atkins, 42 Vt. 252; 13 Encycl. Pl. & Pr. 88, 89.
In all of the counts of this information, by way of innuendo only, is stated matter explanatory of the publication, which was necessary to be alleged by way of inducement. The offense does not appear complete from the publication itself. In other words, the facts attendant on the publication, which were necessary to explain it and necessary to charge the offense sought to be charged by the information, are not well pleaded therein. This applies to all of the counts. For this reason .the motion to quash should have been sustained.
We are of the opinion that the court abused its discretion in denying the defendant’s petition for a change of venue. The facts alleged are sufficient to sustain the charge of prejudice. They are not denied, except that the presiding judge, in his statement, de nies that he bribed or attempted to bribe the defendant to procure his support at the preceding election. He explains, or attempts to explain, why he has not spoken to the defendant since the election. The fact, however, remains that within a year before the trial the defendant' did charge the judge with bribery. This charge was made by a publication in his newspaper during the progress of the canvass. It was reiterated in the contest proceeding in March, 1899. These occurrences were too recent not to affect in some degree the feelings of the judge towards the defendant. He may have believed that he could act without bias or prejudice in the trial, but it would be an experiment dangerous to the rights of the defendant to permit him to make the effort.
It was error to give paragraph 13 of the instructions. It was not necessary that the defendant should prove to the satisfaction of the jury that he did not participate in the publication. It was only necessary for him to produce evidence sufficient to raise in the minds of the jury a reasonable doubt that he did so. The burden was upon the state as to this issue and it did not change. (The State v. Wait, 44 Kan. 320, et seq., 24 Pac. 354; The State v. Osborn, 54 id. 473, 38 Pac. 572; The State v. Child, 40 id. 482, 20 Pac. 275.)
It was error to give paragraph 17 of the instructions. The court said in that instruction that any imputation against a person holding an office which imports a charge of unfitness to administer the duties of the office is libelous. It seems to savor of the old adage, that the king can do no wrong. If an officer is the servant of the people, his official conduct is a proper matter for criticism, within proper bounds ; and a mere imputation of unfitness for the office is not libelous per se, and this is the substance of what the court said to the jury. It follows that the court erred in denying the defendant’s motion for a new trial.
The judgment is reversed, and the cause remanded for further proceedings in accordance herewith.
McElroy, J., concurring.
|
[
-112,
-6,
-56,
47,
42,
96,
-86,
-8,
-95,
-125,
-73,
115,
-19,
-14,
28,
49,
-9,
109,
85,
107,
-36,
-73,
-121,
-127,
-10,
-109,
-46,
-41,
-73,
-50,
-17,
-68,
12,
-80,
-62,
-43,
-25,
-54,
-7,
92,
-122,
1,
-88,
-59,
-78,
-54,
36,
35,
92,
79,
97,
-34,
-77,
41,
18,
71,
-87,
58,
79,
53,
64,
48,
-103,
13,
127,
20,
51,
54,
-100,
69,
-64,
44,
16,
17,
49,
-24,
127,
-74,
-45,
-11,
95,
-101,
32,
34,
98,
4,
-19,
-82,
-115,
-72,
47,
75,
-99,
38,
16,
33,
41,
9,
-105,
-103,
116,
0,
-114,
114,
-1,
21,
21,
108,
11,
-121,
-92,
-77,
-49,
60,
28,
101,
-29,
-109,
16,
48,
-51,
59,
92,
75,
-8,
-101,
-122,
-108
] |
Per Ouriarn:
This is an appeal from a judgment of conviction upon an information charging the defend ant with the publication of a criminal libel in a newspaper, the Wathena Star, of which he was editor and publisher.
There are three assignments of error, which we will consider in order.
1. That the court erred in overruling defendant’s motion to quash the information for the reason that the same does not state facts sufficient to constitute a public offense. The language set out in the information as constituting the libel is actionable per se, and it is not necessary that the information state that it tended to provoke to wrath or expose to public hatred; (The State v. Osborn, 54 Kan. 474, 38 Pac. 572.)
2. That the court erred in overruling the defendant’s motion and petition for a change of venue. The petition for a change of venue, and the evidence offered in support of and against the same, are identical with that in the case No. 821, The State v. Grinstead, ante, p. 78, 61 Pac. 976. Upon the authority of that case, we must hold that the court erred in overruling the application for a change of venue.
3. That the court misdirected the jury in material matters of law. The court instructed the jury :
“12. The article set out in the information as having been published and circulated by said defendant is libelous; and unless you believe from the evidence that such article was true and that it was published for justifiable ends, you should find the defendant guilty.”
“17. If the jury believe from the evidence in this case, beyond a reasonable doubt, that the defendant published in said paper, in Doniphan county, Kansas, the alleged libel, and that the same was published of and concerning John A. Fulton, and that said publication tended to provoke said Fulton to wrath or expose him to public hatred, contempt, or ridicule, such publication is libelous, and the law presumes that the same was published maliciously, and you should find the defendant guilty, unless you believe from the evidence that such article was true and it was published for justifiable ends.”
“19. If you believe from the evidence in this case that the article complained of in the information is true, and that the defendant published the same for justifiable ends, then the defendant should be acquitted.”
In these instructions the court plainly tells the jury that
“If you believe from the evidence in this case that the. article complained of in the information is true, and that defendant published the same for justifiable ends, then the defendant should be acquitted ;” . . . “And unless you believe from the evidence that such article was true, and that it was published for justifiable ends, you should find the defendant guilty.” “And you should find the defendant guilty unless you believe from the evidence that such article was true and it was published for justifiable ends.”
Now, this is not the law. It is only incumbent upon the defendant to offer such proof in his defense, in regard to the truthfulness of the article alleged to be libelous and the object of its publication, or such defense as he may make, as is necessary to raise in the minds of the jury a reasonable doubt; and if such reasonable doubt arises, either from the evidence or from a lack of evidence, the defendant is entitled to an acquittal.
The court erred in its instructions to the jury. The burden of proof was not upon the defendant to establish his defense to the satisfaction of the jury before he could demand an acquittal. The court, therefore, erred in overruling the defendant’s motion for a new trial. The judgment is reversed and the cause remanded.
Mahan, P. J., concurring.
|
[
-80,
-22,
-7,
31,
8,
96,
42,
-34,
97,
-127,
-82,
115,
-19,
-53,
12,
123,
115,
105,
116,
105,
-52,
-121,
23,
-61,
-14,
-77,
-45,
-105,
-73,
77,
-10,
-10,
12,
48,
-54,
-43,
70,
74,
-59,
-36,
-114,
-122,
8,
81,
64,
64,
32,
122,
52,
75,
113,
-66,
-13,
42,
30,
-61,
-55,
60,
-53,
-67,
67,
-80,
-48,
-113,
-17,
22,
-93,
55,
-104,
-126,
-48,
44,
-112,
25,
33,
-88,
115,
-90,
6,
117,
111,
41,
12,
106,
98,
33,
20,
-18,
40,
-120,
47,
63,
13,
-89,
-100,
72,
73,
8,
-105,
-99,
102,
16,
7,
58,
-12,
-107,
-103,
60,
1,
-50,
-44,
-77,
-113,
56,
-98,
79,
-21,
21,
0,
116,
-51,
-94,
92,
2,
50,
59,
-113,
-76
] |
The opinion of the court was delivered by
McElroy, J.:
George W. Jones, county attorney of Graham county, on March 14, 1899, filed in the office of the clerk of the district court of that county an information charging Thomas F. Goff, jr., in seven counts, with the unlawful sale of intoxicating liquors, and in one count with maintaining a common nuisance under the prohibitory liquor law. The first count reads :
“I, the undersigned, county attorney of said county, in the name, by the authority and on behalf of the state of Kansas give information that Thomas F. Goff, jr., at the county of Graham, in the state of Kansas, on the 3d day of November, a. d. 1898, without having procured from the probate judge of said county any permit to sell intoxicating liquors, did then and there unlawfully sell and barter spirituous, malt, vinous, fermented and other intoxicating liquors, contrary to the statutes in such cases made and pro vided and against the peace and dignity of the state of Kansas.”
The other six counts of the information were the same, except the date of the sale. The eighth count reads:
“And I do further give the court to understand and be informed, that the said Thomas F. Goff, jr., at and in a certain two-story frame building situated on the south side of Main street, in the city of Hill City, Kan., on the east twenty-one feet of lot 19, in block 18, in the original town (now city) of Hill City, in said Graham county, in the state of Kansas, did, at the respective dates of the several offenses hereinbefore charged, then and there have and keep in his possession there, and then and there used and employed the same, in and about and for the commission of the said offenses, and then and there did at said dates, and still does, there keep and have in his possession for the purpose of being and employing, and uses and employs the same, in and about and for the purpose of keeping there an unlawful place for the unlawful sale and keeping for unlawful sale of intoxicating liquors to be used as beverages, and not for medical, scientific nor mechanical purposes, certain property, intoxicating liquors and vessels in his possession kept, to wit, certain barrels, boxes, kegs, jugs, and bottles.”
The information was verified before the clerk of the district court as follows :
“State oe Kansas, Graham County, ss.: I do solemnly swear that the allegations set forth in counts numbered first, second, third, and eighth in the within information are true. So help me God.
T. J. Garnett.”
“State oe Kansas, Graham County, ss.: I do solemnly swear that the allegations set forth in the within information are true, to the best of my information and belief. So help me God.
George W. Jones, County Attorney
A warrant was duly issued, and placed in the hands of the sheriff. The defendant was arrested, and afterward, on the 15th day of March, 1899, entered into a recognizance for his appearance at the next term of court, and was released from custody under the warrant of arrest. The defendant, on May 15 thereafter, filed his motion to quash the warrant of arrest for the reasons : (1) That the warrant of arrest was not issued upon probable cause, supported by the oath or affirmation of any person ; and (2) that the warrant of arrest, so far as it relates to the search and seizure of property, is void, for the reason that it does not particuarly describe the property to be seized. The motion to quash was overruled. The defendant thereafter moved the court to quash the information for the reasons: (1) That the facts stated do not constitute a public offense; (2) misjoinder of offenses; (8) that the information is bad for duplicity; (4) that the eighth count does not particularly describe the property to be seized; and (5) that the fourth, fifth, sixth and seventh counts are not supported by the oath or affirmation of any person. This motion was overruled. The defendant was arraigned, refused to plead, and the court ordered a plea of not guilty to be entered. A trial was had at the May term, 1899, which resulted in the conviction of the defendant upon the first, second, third, fourth, fifth, seventh and eighth counts of the information. The defendant filed motions for new trial and in arrest of judgment, which were overruled. The court sentenced the defendant to pay a fine of $100 ; that he be confined in the county jail of Graham county for thirty days under each count of the information upon which conviction was had; that he pay the costs of the prosecution; and that he stand com mitted to the jail until the fine and costs be paid. The defendant prosecutes an appeal. The appellant insists that the proceedings in the trial were erroneous, as follows :
1. The first,, second and third assignments of error - present but one question; that is upon the sufficiency of the verification to the information. The defendant was arrested on March 15,1899, at which time he voluntarily entered into a recognizance for his appearance at the next regular term of the district court for Graham county and was released. The motion to quash the warrant was filed May 15, 1899. The de» fendant was not under arrest at the time he made his motion to quash the warrant. The warrant had spent its force and had been returned by the sheriff. He was no longer held by reason of the'warrant. The defendant was under recognizance to appear at court, but he entered into that voluntarily. When he entered into a recognizance for his appearance, without making any objection to the sufficiency of the warrant, the sufficiency of the information, or the verification thereof, he waived the supposed defects in the verification, and the irregularity, if any, in the issuance of the warrant. (The State v. Longton, 35 Kan. 375, 11 Pac. 163; The State v. Stredder, 3 Kan. App. 631, 44 Pac. 34.)
2. It is contended that the court erred in refusing to give instructions requested by the defendant. The instructions requested by the defendant of which complaint is made are as follows :
“(1) The fact that the defendant did not testify in this cause should not be construed by the jury to affect his innocence or guilt.”
■ This instruction presents a question which has been largely considered by the courts of various states. In the Encyclopedia of Pleading and Practice (volume 11, page 351), it is said :
“In some jurisdictions it is made the duty of the court to instruct the jury that no inference of the defendant’s guilt is to be drawn from his failure to testify, and it would seem that no request for such an instruction is necessary ; in others, the giving of such an instruction is proper, but not necessary, in the absence of a request therefor. In some jurisdictions, because of the peculiar wording of the statutes, it has been held erroneous to refuse an instruction that no presumption of guilt should be indulged against the defendant on account of his failure to testify, and in others it has been held proper to instruct that such failure raises no presumption against the accused.. On the other hand, the statutes of some states have been so construed as to prohibit the court from charging that a neglect or refusal of the accused to testify does not create any presumption against him. These courts take the view that the trial judge should say nothing whatever in regard to the matter.”
Section 218 of the criminal code (Gen. Stat. 1897, ch. 102, § 218; Gen. Stat. 1899, § 5465) reads: “The neglect or refusal of the person on trial to testify, or of a wife to .testify in behalf of her husband, shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the trial takes place.” This statute is very similar to that of Missouri, which reads (Rev. St. Mo., ch. 48, art. 7, § 4219): “If the accused shall not avail himself or herself of his or her right to testify, or of the testimony of the wife or husband, on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be consid ered by the court or jury before whom the trial takes place.” Under this Missouri statute, it has been held that the trial court properly refused to give a similar instruction. (State v. Robinson, 117 Mo. 663, 23 S. W. 1066.) We are inclined to think that our statute is substantially like that of Missouri, and that the court properly refused to give this instruction. The neglect or refusal of a person on trial to testify shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the trial takes place. This is plain : The court shall not consider the matter; the jury shall not consider the same. How can the court instruct upon a matter which it cannot consider ? Why instruct the jury upon a question which it cannot take into consideration? The instruction was properly refused.
“(2) The court instructs the jury that you are not authorized by law to arbitrarily reject, without cause or reason, the testimony of any witness, but it is your duty to carefully examine, and, so far as possible, harmonize all the testimony in the case upon the basis of truth; but if you are unable to do this, then you are authorized to, and it is your duty to, reject such of it as you think not entitled to credit. And in considering the testimony you should not draw any unfair inference or unjust conclusions against the defendant because of any failure or omission on his part to offer any particular kind of evidence, but he should be tried alone upon the facts proved. You are to found your verdict on the testimony delivered by the witnesses upon the witness-stand, and are not to supplement it with some other fact that you may think exists but which has not been proven.”
It is apparent that this instruction would be very proper under some circumstances. For instance, in a case where, from conflicting testimony, a party should apprehend that, for some reason, portions of his testimony might he arbitrarily rejected by the jury without sufficient excuse. In the case at bar, the defendant introduced no testimony; he had no witnesses nor testimony to be protected from arbitrary rejection by the jury; there was no conflict in the testimony, there was no just ground for the defendant to apprehend that testimony would be arbitrarily rejected ; he had offered none; there was no conflict in the testimony to be harmonized by the jury; hence there was no necessity for an instruction as to how to harmonize conflicting testimony. The instruction was not applicable to the testimony, and was properly refused.
8. That the court erred in instructing the jury:
‘ ‘ (1) The necessary elements constituting the crime charged in the first, second, third, fourth, fifth, sixth and seventh counts of the information, and which must be proven by the evidence beyond a reasonable doubt, to justify a conviction under any of them, are : First, that the defendant unlawfully sold some kind of intoxicating liquors ; second, that he sold it within Graham county, Kansas ; third, that such sale or sales were made some time within two years just prior to the 14th day of March, 1899.”
The contention here made is that the instruction is erroneous, for the reason that it eliminates entirely the necessity of the state proving that the defendant did not have a permit from the probate judge to sell intoxicating liquors. The court committed no error in giving this instruction. It is not necessary that the prosecution in the first instance prove that the defendant did not have a permit to sell intoxicatiug liquors for the excepted purposes. Section 47, chapter 101, General Statutes of 1897 (Gen. Stat. 1899, § 2417), reads : “. . . It shall not be necessary in the first instance for the state to prove that the party charged did not have a permit to' sell intoxicating liquors for the excepted purposes. . . .” (The State v. Grow, 53 Kan. 662, 37 Pac. 170.)
“2. If one keeps a place where the public gen» erally is permitted to resort for the purpose of obtaining intoxicating liquors to be used as a beverage, and the public generally do resort to such place for such purpose, and the liquors are delivered by the keeper thereof to such persons as do resort to the place for that purpose, and such liquors are drank in the premises with the knowledge and consent of the keeper, such facts are evidence from which a jury would be justified in inferring that such place is a common nuisance, under the prohibitory liquor law.”
Section 39, chapter 101, General Statutes of 1897 (Gen. Stat. 1899, § 2410), reads:
“All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of any of the provisions of this act, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of this act, are hereby declared to be common nuisances. . . .”
The eighth count of the information charges only under the first aud third subdivisions of the statute defining a nuisance. There is no attempt to charge under the second subdivision, “or where such persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage.” This instruction was therefore erroneous. (The State v. Nye, 32 Kan. 201, 4 Pac. 134; The State v. Burkett, 51 id. 175, 32 Pac. 925.)
4. The next contention is that the verdict of the jury is contrary to the law and the evidence. It is here contended that there is no evidence as to what county the several offenses were committed in, and that there is no evidence as to whether or not the defendant had a permit to sell intoxicating liquors. We have already noted sufficiently the latter contention. We have examined the evidence very carefully tending to show in what county the several sales of liquors were made. We think that there was an abundance of testimony from which the jury might properly find that the offenses were committed in Graham county. As to the conviction upon the eighth count, however, there is a total lack of evidence to show that the sales were made in a two-story frame building situated upon the south side of Main street, in Hill City, Kan., on the east twenty-one feet of lot 19, in block 18, in the original town (now city) of Hill City, in Graham county, state of Kansas. There is, therefore, a lack of evidence to support the conviction of the defendant on the eighth count of the information. Prom Avhat we have said, it follows that the court properly overruled the motion for a new trial as to the first, second, third, fourth, fifth and seventh counts of the information. The court erred in overruling the motion for a new trial upon the eighth count of the information, for the reasons hereinbefore stated. The judgment of conviction will be affirmed as to the first, second, third, fourth, fifth and seventh counts of the information, and a new trial awarded upon the eighth. The costs in this court are taxed one-seventh to the state, and six-sevenths to the appellant.
|
[
-15,
-26,
-84,
29,
58,
-32,
40,
-4,
73,
-79,
-11,
83,
-55,
-24,
5,
99,
-6,
109,
85,
121,
-32,
-74,
22,
64,
-126,
-5,
-7,
-59,
49,
77,
-28,
-34,
89,
32,
74,
93,
6,
-54,
-57,
94,
-116,
0,
41,
-24,
83,
9,
-76,
123,
55,
10,
117,
47,
-18,
44,
30,
-29,
41,
40,
-39,
8,
89,
-15,
-71,
-43,
108,
22,
1,
2,
-104,
-123,
88,
47,
-104,
49,
64,
-8,
-13,
-122,
6,
-12,
13,
-55,
13,
116,
98,
35,
-43,
-17,
104,
-87,
15,
31,
-103,
39,
-68,
73,
97,
32,
-74,
-100,
52,
24,
3,
-14,
-29,
21,
25,
104,
-124,
-117,
-70,
-79,
15,
40,
-118,
19,
-1,
39,
32,
65,
-43,
110,
92,
84,
116,
27,
-115,
20
] |
The opinion of the court was delivered by
Mahan, P. J.:
There is no merit in the motion to dismiss. The case was made and served within the time fixed by the court. It was settled and signed by the proper officer within a year from the date of judgment.
There is no introductory matter in the case-made ; e. g., this is a case-made, or this is the petition that was filed in the court below in which the trial was had, or this is the answer, etc. However, it discloses the cause and the issues joined in the controversy and the court’s rulings, giving day and date, and there is an acknowledgment of service as a case-made, and a long list of suggestions of amendments, running through the entire record, which were allowed.
We do not believe in being too precise and technical in construing these records, so as to avoid hearing parties on the merits of their controversies, when the controverted questions of law are fairly presented thereby.
There are no strictly formal assignments of error, as required by the rules of the court, but the brief presents clearly the grounds of contention.
In the first place, it' is contended that there must have been an express contract between the hospital and the insane person or her guardian to make her estate liable for her necessary maintenance and care. We do not so understand the law. On the contrary, the estate of an insane person is liable for necessaries furnished him, upon an implied contract. Hence, the second count of the answer, which denied the making of any express contract for necessaries, either by the insane person or her guardian, stated no defense to the cause of action set out in the petition, and the demurrer thereto was properly sustained. (See People v. Ettemon, 60 Kan. 854, 56 Pac. 749.) No statute was necessary to create a liability on her part for such benefits received by her.
There is sufficient evidence of the’ plaintiff’s capacity to maintain the suit as a corporation.
The notary who took the deposition read on the trial was not disqualified by the provisions of section 350 of the code (Gen. Stat. 1897, ch. 95, § 361; Gen. Stat. 1899, § 4613). No objection was made at the time the deposition was taken that he was disqualified by being partial to plaintiff or prejudiced against the defendant. The mere fact that he was bookkeeper for the hospital did not disqualify him as a person having an interest in the event of the suit.
The admission of Doctor Bamford’s evidence regarding the record of the hospital was not so prejudicial to the defense as to be reversible error, and the evidence in that regard was elicited by the defense upon cross-examination and not concerning any matter testified to upon his examination in chief.
It is admissible to prove the law of another state by persons learned therein.
There is but one other contention presented by the briefs of plaintiff in error. The insane person, Mrs. Sarah Palmer, was a citizen of Kansas, on a visit to relatives in New York. Her husband and children were domiciled in Kansas; were able, and it was their duty, to support her. She had been, theretofore, adjudged insane by the probate court of Johnson county, Kansas. She was admitted to the New York hospital, plaintiff, as an indigent insane person, and maintained and cared for by the hospital, and the expense thereof paid from an appropriation made by the legislature of New York to provide an asylum for the indigent insane.
No charge was made for this service and expense, either to the husband in his lifetime or to the wife. She entered the asylum the last time in 1893, and was taken therefrom by her son in 1896. For the last period of service recovery is sought. It is contended that, inasmuch as she was admitted as an in digent insane person, under the provisions of the New York statute, and her care and maintenance paid for by the state and no direct charge made therefor, the state is now entitled to indemnity from her property in Kansas.
It is plain that the state of New York did not intend to provide for Kansas insane as a charity. When its agents discovered that they had been providing an asylum to a person not entitled thereto as a lawful right, and that the recipient was able to refund to the state its expenses therein, the law of New York made it their duty, in the name of the hospital, to sue to recover it.
The judgment is affirmed.
|
[
-112,
104,
-44,
-67,
-85,
96,
34,
-102,
97,
-93,
39,
115,
-27,
-46,
28,
105,
-10,
47,
-47,
107,
71,
-77,
39,
9,
-10,
-110,
-8,
85,
-79,
-49,
-28,
-10,
76,
56,
-22,
-43,
102,
-62,
-59,
84,
-54,
9,
-119,
73,
-16,
-22,
48,
51,
-42,
79,
85,
-33,
-13,
42,
56,
-57,
-23,
44,
74,
61,
-32,
-96,
-117,
-123,
123,
3,
-79,
38,
-100,
103,
-24,
44,
-104,
56,
1,
-20,
49,
-74,
-122,
116,
107,
-71,
8,
102,
98,
33,
21,
-25,
-120,
-104,
47,
86,
13,
-90,
-112,
73,
-117,
9,
-73,
-67,
117,
48,
-121,
126,
-2,
20,
28,
108,
11,
-117,
-42,
-77,
-113,
126,
28,
-21,
-17,
-93,
48,
81,
-50,
112,
92,
67,
59,
25,
-114,
-98
] |
The opinion of the court was delivered by
Schoonover, J.:
This was a foreclosure proceeding brought by William Smith, plaintiff in error, in the district court of Woodson county, to foreclose a mortgage given by one L. W. Wallace to the Emporia Investment Company, which mortgage was by the investment company assigned to Smith. Some time after executing the mortgage, Wallace sold the land to William H. Morris, who assumed payment of the mortgage. Prior to the commencement of this action, Morris died, and by will left the land to his widow, Nancy E. Morris, one of the defendants in error herein.
About the time that the mortgage became due, Morris made application to the Emporia Investment Com pany for an extension on $500 of the mortgage indebtedness, the total indebtedness amounting to $1000. The investment company submitted the application to Smith, the assignee of the mortgage, and he consented to make the arrangement. Morris paid $500 to the investment company upon the understanding that Smith was to .grant an extension of three years upon the remaining $500. The company became insolvent and the money was never sent to Smith or returned to Morris. Smith brought suit, and in his petition demanded judgment for $1000, the amount of the mortgage indebtedness. Defendants, as one defense, set up the payment of $500 to the Emporia Investment Company, and the question which we are called upon to decide is, Did the company receive the money as the agent of Smith or as the agent of Morris?
We have carefully examined the record and find upon this question a conflict of evidence. There is, however, evidence which, in our opinion, tends to show that the investment company acted as the agent of Smith, and, under the well-settled rule of practice, we cannot weigh conflicting evidence. As there is some evidence tending to show that the company acted as agent of Smith the judgment of the district court must be upheld.
Plaintiff in error also objects to the introduction of certain evidence, but, so far as the objection can now be considered by us, we think that such evidence was admissible for the purpose of showing general agency.
No error appearing, the judgment of the district court will be affirmed.
|
[
-16,
110,
-72,
-68,
26,
-32,
40,
-102,
90,
-96,
-91,
83,
109,
-62,
16,
109,
-93,
57,
-31,
104,
-41,
-77,
71,
-86,
-46,
-77,
-13,
-35,
-79,
-35,
-12,
-41,
76,
32,
74,
-35,
-58,
-96,
-57,
-36,
-50,
-123,
-119,
101,
-39,
64,
48,
-69,
16,
79,
21,
-34,
-14,
46,
57,
-53,
105,
42,
-21,
-23,
-48,
-7,
-118,
-115,
95,
7,
-79,
4,
-66,
35,
72,
42,
-112,
49,
0,
-24,
114,
-74,
-106,
116,
77,
27,
40,
34,
98,
1,
-47,
-17,
-4,
-104,
47,
-4,
-115,
-90,
-106,
88,
11,
41,
-66,
-99,
125,
16,
-121,
-12,
-18,
29,
25,
108,
7,
-49,
-74,
-111,
-113,
120,
-104,
27,
-2,
3,
32,
112,
-49,
-86,
93,
103,
122,
-101,
-114,
-112
] |
The opinion of the court was delivered by
Schoonover, J.:
In the year 1886, Mary E. Gano and William Gano, her husband, to secure a note of $1200, due in two years, made, executed and delivered to J. T. Murtagh a mortgage on lots 4 and 5, block 126, in Paola, Miami county, owned by Mary E. Gano, and occupied by herself and husband as a homestead. ■On the 3d day of May, 1887, Mary E. Gano was by the probate court of Miami county adjudged to be a person of unsound mind, and letters of guardianship were duly issued to William Gano, her husband, who gave bond and entered upon the duties of such guardianship. In 1889, the Murtagh mortgage being due and unpaid, William Gano applied to the JarvisConklin Mortgage Trust Company for á loan with which to pay off such mortgage. The application was in writing, and was signed, apparently, by both Mr. and Mrs. Gano. The record does not show that the insanity of Mrs. Gano was disclosed to the company, or that it had any actual knowledge of such insanity and the guardianship of Mr. Gano. Upon this application the company made a loan, which was used in paying off the Murtagh mortgage, the Ganos giving their note, and a mortgage upon the property covered by the Murtagh mortgage, to the company to secure such loan. This note and mortgage were afterward assigned to the defendant in error herein, Lorenzo Martin. On July 8,1895, the note and mortgage being due and unpaid, Martin began foreclosure proceedings in the district court of Miami county. To the petition filed by plaintiff the defendants answered, setting up as their defense the finding of the probate court of Miami county adjudging Mrs. Gano to be a person of unsound mind and incompetent to transact business, and it was also pleaded that Mr. Gano had been appointed her guardian. The plaintiff replied, and alleged that the mortgage company made the loan in good faith, for the purpose of paying off a prior mortgage, and without any knowledge of the insanity of Mrs. Gano; that the loan was made upon the written application of William Gano, which in no way disclosed the insanity, and upon a written abstract of title, which was furnished by said William and Mary E. Gano, and which failed to show the probate proceedings by which Mrs. Gano was adjudged to be insane ; that said abstract of title was by the mortgage company submitted to counsel learned in the law, and it was certified to by counsel to show clear title in Mary E. Gano, subject to the prior mortgage of $1200, which was- to be taken up by the new loan ; that said William Gano and Mary E. Gano fraudulently concealed from the mortgage company, and all persons representing it, the fact of insanity, and that the plaintiff never knew or suspected any such insanity until the same was alleged in the answer. Plaintiff prayed that, in case the court should find the note and mortgage sued upon to be void, then he be subrogated to the lien of the prior note and mortgage, and that said lien be foreclosed. The case was tried to the court, which found that the averments contained in the petition of plaintiff were true, and that plaintiff was entitled to be subrogated to the lien of the original mortgage. Judgment was rendered in favor of plaintiff, and the defendants bring the case here.
The judgment appears to have been rendered upon the theory that the note and mortgage given to the Jarvis-Conklin Mortgage Trust Company were void because of the insanity of Mrs. Gano, and that the mortgage company was therefore subrogated to the rights of the holder of the original mortgage, which was paid off out of the proceeds of the loan made by the company. Plaintiffs in error concede that Martin was probably subrogated to the rights of the holder of the original mortgage, but contend that the cause was barred by the statute of limitations as to such holder, and was therefore barred as to Martin, upon the principle that subrogation carries with it no greater, rights than the creditor possesses. If, as counsel for plaintiffs in error states, this case involved the question as to whether or not the equitable right of subrogation is subject to the bar of the statute of limitations, and this question alone, we would have no difficulty in reaching a decision; but, as we view the case, this is not the question. It is agreed by the parties that payments of interest were made on the mortgage given to the Jarvis-Conklin Mortgage Trust Company, and the record shows that the last payment of interest was made less than five years before this action was brought. What, if any, was the effect of such payments? Would the effect be to toll the statute as to the original note and mortgage ? It was averred by plaintiff that defendants fraudulently concealed the fact that Mrs. Gano had been adjudged insane, and this averment the court found to be true. What, if any, was the effect of such fraudulent concealment? Would it suspend the running of the statute of limitations until the discovery of the fraud ? This is an equitable proceeding, and we are not to indulge is nice discriminations. One thing appears from the record very clearly, and that is that the equities are with the plaintiff. Defendants fraudulently concealed the fact of Mrs. Gano’s insanity. The mortgage company, in ignorance of such insanity, made a loan and took a mort gage upon Mrs. Gano’s property. The proceeds of the loan were used to pay off a prior mortgage. The mortgage given to the mortgage company was absolutely void — never had any legal effect — and the mortgage company became subrogated to the rights of the holder of the original mortgage at the time it was paid out of the pi'oceeds of the loan made by the company. Martin, the assignee, believing that he held a valid mortgage, failed to assert his rights under the original mortgage until a time when the rights of the original holder of such mortgage would have been barred. His failure so to assert his rights was due to the fraudulent concealment by defendants of facts which rendered his (plaintiff’s) mortgage void. Must we now hold that defendants can take refuge behind their own wrong? We think not. Equity and justice impel us to hold that the statute of limitations did not begin to run until the discovery of the fraud, which was not until the filing of the answer of defendants, and, under this view of the case, the cause was brought in time.
We think, also, that the payment of interest by William Gano was sufficient to toll the statute. The new mortgage was void, but equity kept alive the lien of the old mortgage for the benefit of the mortgage company and its assignee, Martin. Equity would require that the defendants be credited with the payments made, upon the ground that “he who seeks equity must do equity.” The payments certainly were made in recognition of an existing obligation. The only obligation existing was that evidenced by the original note and mortgage, and plaintiff had been subrogated to all the rights of the original holder of these ; or, as counsel for plaintiff expressed it, Mar tin was placed in the shoes of Murtagh, the original holder. We think, in view of all the facts and circumstances, we are jus tiffed in holding that these payments were sufficient to toll the statute. The judgment of the district court is affirmed.
|
[
-15,
106,
-72,
-82,
-86,
96,
-82,
-102,
123,
-127,
-75,
115,
-21,
-94,
20,
109,
-25,
109,
-27,
125,
-11,
-78,
55,
8,
50,
-13,
-9,
-35,
-79,
-35,
-28,
-41,
73,
32,
74,
29,
-26,
-128,
-57,
84,
-114,
-121,
-119,
-27,
-47,
64,
52,
-65,
86,
76,
21,
-113,
-93,
47,
63,
72,
104,
43,
73,
41,
-64,
-88,
-81,
-123,
79,
21,
17,
100,
-98,
-125,
-56,
10,
-112,
53,
32,
-24,
83,
-90,
-106,
116,
79,
-103,
9,
118,
102,
1,
-35,
-17,
-16,
-99,
7,
125,
-103,
7,
-102,
77,
91,
0,
-74,
-35,
108,
80,
39,
-28,
-18,
-100,
77,
108,
0,
-49,
-106,
-79,
-114,
-8,
-102,
19,
-2,
27,
53,
113,
-52,
-96,
94,
71,
123,
25,
14,
-79
] |
The opinion of the court was delivered by
Mahan, P. J. :
The record discloses that the probate court assumed jurisdiction not only to try the title to the money but to adjudicate a contract made by the deceased with the petitioner in his lifetime, and to hold the contract invalid for the want of mental capacity on the part of the deceased to enter therein. The petitioner objected to the court entering upon an investigation of the mental condition of the deceased, but her objection was overruled by the court.
We do not deem it necessary to notice the many objections urged to the proceeding. It is not necessary to determine whether the citation in the first instance was properly issued, nor whether the affidavit was sufficient, as the petitioner appeared and submitted to an examination without objection. Nor do we deem it necessary to determine whether the affidavit for the writ of attachment was sufficient, or whether the writ was properly entitled or directed.
We are of the opinion that the probate court was without jurisdiction to try the title or to adjudicate the validity of any contract made between the parties in this summary proceeding, or in fact in any proceeding, nor had it the jurisdiction to enforce the judgment of a debt by contempt proceeding. The statute does not authorize it. The collection of the assets of the estate by the administrator cannot be enforced through the probate court except under the provisions of the sections alluded to above, and this summary proceeding is only applicable where the property of the estate remains in specie in the hands of the party against whom the complaint is made at the time the complaint is filed. (See 1 Woerner, Law of Adm. § 151, et seq., and vol. 2, § 325; Dinsmore v. Bressler, 45 N. E. (Ill.) 1086; White v. Gates, 42 Ohio St. 109; Ex parte Hollis, 59 Cal. 405; Larabee v. Selby, 52 Cal. 506; Ex parte Casey, 71 Cal. 269, 12 Pac. 118; Dameron’s Adm’r v. Dameron, 19 Mo. 317.)
The probate court being without jurisdiction to adjudicate the title to the property or to commit for a contempt for a failure to pay money upon an indebtedness to an estate, if such existed, the detention of the prisoner was unlawful, and she must be discharged.
|
[
-77,
108,
-43,
-65,
-54,
96,
2,
-104,
-13,
-77,
37,
-13,
105,
67,
16,
107,
114,
47,
113,
106,
71,
-78,
35,
67,
-9,
-46,
-96,
92,
-77,
-18,
102,
-33,
76,
-96,
-30,
-43,
102,
11,
-43,
-46,
-50,
4,
-103,
109,
-39,
-64,
48,
49,
87,
11,
85,
-97,
-29,
42,
27,
-61,
-23,
43,
121,
45,
-64,
-104,
-113,
-107,
127,
6,
-111,
53,
-104,
43,
88,
10,
0,
57,
3,
-24,
49,
-74,
-122,
84,
75,
25,
41,
102,
98,
-95,
-52,
-17,
-104,
-103,
47,
118,
29,
-89,
-102,
81,
75,
37,
-66,
-99,
101,
52,
7,
-20,
-18,
20,
-99,
108,
13,
-49,
-42,
-79,
-49,
126,
-104,
67,
-29,
65,
20,
81,
-52,
-46,
93,
98,
57,
-103,
-114,
-112
] |
The opinion of the court was delivered by
Wells, J.:
The plaintiffs in error began this action in the district court against the defendant in error to recover $1450, which amount was secured by a chattel mortgage, said mortgage being by its terms subject to prior mortgages in favor of W. H. Davis, the Bank of Topeka, John R. Mulvane, P. V. Sproat, W. R. Hazen, and Ed. Sproat, who, together with Swofford Brothers Dry-goods Company, George R. Sproat, Symms Grocer Company, C. D. Scott, Rice, Stix & Co., and Frank P. Mac Lennan, were made defendants therein. At the same time an application was made for the appointment of a receiver, and a receiver was soon thereafter appointed. Summons was served upon the defendants. Afterward said mortgagees and various others made a motion to vacate the order appointing a receiver, and also a motion to stay proceedings by the receiver until said motion to vacate his appointment could be heard. These motions were respectively overruled. Afterward the defendants the Bank of Topeka, J.. R. Mulvane, P. V. Sproat, W. R. Hazen, Ed. Sproat, George R. Sproat and W. H. Davis filed demurrers to the petition. Afterward a judge pro tem. was selected by agreement of the parties and all subsequent proceedings herein were tried before him. The demurrers were sustained and the petition amended. Other demurrers were filed and overruled as to Samuel Sproat and W. H. Davis, and sustained as to the Bank of Topeka, J. R. Mulvane, P. Y. Sproat, W. R. Hazen, Ed. Sproat, George R. Sproat, and C. D. Scott. No further amendment was made to the petition.
Afterward, upon the order of the court, the property in the hands of the receiver was returned to W. H. Davis for the benefit of the parties, upon the giving of a bond by P. V. Sproat, J. R. Mulvane, Bank of Topeka, and W. R. Hazen, conditioned “to pay any final judgment that may be rendered in said case against said S. Sproat and in favor of said plaintiff and all costs that said plaintiff shall recover in said case against said S. Sproat or either or all of said defendants W. H. Davis, the Bank of Topeka, J. R. Mulvane, P. Y. Sproat, W. R. Hazen, Ed. Sproat, and George R. Sproat, or that shall finally be adjudged a legal charge against said stock of goods superior to the mortgage claims of said parties, provided the proceeds from the sale of said mortgaged property shall be insufficient to pay said claim and costs, or provided said claim, judgment and cost be pot fully paid and satisfied out of the proceeds of said mortgaged property.” Said order and return were made by the consent and agreement of all parties that the right of neither plaintiffs nor defendants to an adjudication as to who shall ultimately be liable for the expense, of the receivership herein should be in any manner affected by the order herein made, and that the question of said liability should remain to be determined in the final determination of this suit the same as if the order therein provided for had never been made; and said receiver was never formally discharged. Afterward the issues were made up between said plaintiffs and S. Sproat, and W. H. Davis filed an answer to the petition, alleging, among other things, that said petition did not state facts sufficient to constitute a cause of action against him, and praying that he have judgment for costs. Afterward Davis admitted in court that his claim had been fully paid, whereupon the action was dismissed as to him; after which the action was dismissed as to all the other defendants except Samuel Sproat, and a trial was had as between said Sproat and said plaintiffs. No evidence was introduced, but admissions as to certain facts were made of record. The court found against the plaintiffs for $400 of the expense of receiver and deducted the sum from the amount of their debt. The correctness of this finding is the only substantial question in the case.
There were no parties to the suit at the time of trial but the plaintiffs in error and the defendant in error, and the court had authority to adjudicate their rights alone ; the other defendants in the case, upon their own application or acquiescence, being out of it. By stipulation, the situation of the parties as to liability for the costs of the receiver was left the same as it would have been had the order taking the property from the receiver and placing it in the hands of the other mortgagees never been made. Had said order never been made, and had the receiver continued in the discharge of his receivership and settled up! the business, would the party causing his appointment have been liable to be taxed with his costs ? It seems to us he would not. The question of costs between the plaintiffs and the dismissed defendants is not before us, and we cannot consider it.
The judgment of the district court will be reversed, and said court is directed to render a judgment for plaintiffs in error against defendant in error for the sum of $400, with interest.
|
[
-80,
106,
-15,
-33,
10,
96,
42,
-114,
7,
-80,
-89,
83,
-23,
-57,
5,
101,
-26,
45,
-48,
104,
-44,
-77,
23,
-86,
-46,
-13,
-47,
-51,
-79,
93,
-12,
-33,
76,
48,
66,
-41,
102,
-64,
-59,
-108,
-114,
1,
41,
-28,
-35,
10,
48,
59,
54,
73,
17,
-82,
-13,
42,
25,
-46,
105,
44,
-21,
57,
-48,
-80,
-102,
-115,
125,
21,
17,
38,
-98,
71,
88,
-66,
-102,
48,
1,
-84,
122,
-90,
-122,
-12,
37,
-103,
41,
102,
98,
33,
-95,
-17,
-8,
-83,
38,
-35,
-113,
-90,
-110,
72,
-86,
40,
-66,
-99,
-2,
4,
-121,
-4,
-18,
-123,
29,
60,
3,
-49,
-106,
-109,
-113,
61,
-102,
-109,
-5,
3,
48,
113,
-57,
-96,
93,
70,
122,
-109,
-114,
-103
] |
The opinion of the court was delivered by
Schoonover, J.:
This action was brought by defendant in error, as plaintiff, in the district court of Cherokee county, against plaintiff in error, as defendant, to recover damages for injuries alleged to have been sustained while crossing plaintiff in error’s railroad-track. The case was tried to a jury and verdict returned in favor of plaintiff. In addition to their general verdict, the jury found, also, upon particular questions of fact submitted by defendant. Judgment was rendered in favor of plaintiff, and defendant brings the case here.
Plaintiff in error complains of the following instruction given by the court:
‘£ These questions are submitted to you by the parties, and require answers to each and all of them; in order that any judgment in favor of the plaintiff be rendered herein, should your general verdict be for him, it is necessary that your answers to these questions be each consistent with the other in order that your verdict would stand. Before a plaintiff can recover in an action of this kind, it is necessary that a certain state of facts must exist, and they are calling for those facts in your answers to those several questions. You should not regard the answering of these questions as imposing on you any extraordinary duties, for it is one of the rights that parties in law have, and you should give these questions the same consideration that you do your general verdict herein; for you will readily see that your answers to these questions will largely control and govern the court in its future action in this case. If your general verdict in this case should be for the defendant, you need not answer these questions; but if your verdict is for the plaintiff for any amount, answer the questions in the light of the testimony and instructions in this case.”
The court erred in giving this instruction. It was the duty of the jury to find the facts according to the evidence, and to answer the special questions truthfully, without reference to the effect on the general verdict, and without considering whether such answers were consistent one with another. (Dry-goods Co. v. Kahn, 53 Kan. 274, 36 Pac. 327.)
The instruction complained of may not have been prejudicial to the rights of defendant, but there is nothing in the record from which we can with certainty determine that it was not. “It is the right of a. party to have his case submitted to the consideration of the jury under proper instructions, and when incorrect instructions are shown to have been given, a reviewing court will not undertake to say that they did not operate to the injury of the party against whom they were so given, unless such fact is made clearly to appear.” (Hall v. Jenness, 6 Kan. 364; Sheppard v. Pratt, 16 Kan. 212.)
Other errors are assigned by plaintiff in error, but the foregoing is sufficient to require a reversal of the case.
The judgment of the district court is reversed and the case remanded for a new trial.
|
[
-48,
-26,
-83,
-97,
-118,
-32,
50,
-118,
5,
-127,
-74,
115,
109,
-49,
12,
123,
-1,
59,
81,
107,
86,
-89,
23,
-45,
-10,
-10,
-45,
-59,
53,
-53,
-10,
-2,
77,
-80,
-54,
-43,
102,
74,
-59,
124,
-114,
-98,
-56,
96,
-37,
96,
32,
126,
22,
15,
49,
31,
-29,
46,
25,
-61,
105,
56,
-21,
-7,
-61,
-15,
-120,
-123,
109,
4,
-77,
6,
-98,
3,
-40,
34,
-40,
61,
0,
-8,
115,
-74,
-126,
-44,
77,
-117,
8,
102,
103,
33,
28,
-17,
-67,
-104,
47,
125,
-115,
-25,
26,
0,
-53,
13,
-74,
-99,
124,
112,
7,
-2,
-20,
20,
93,
120,
3,
-49,
-78,
-71,
-113,
52,
26,
19,
-21,
-125,
-80,
97,
-51,
-16,
93,
71,
26,
-101,
-113,
-97
] |
The opinion of the court was delivered by
Schoonover, J.:
The defendant in error commenced • this action in the district court of Chautauqua county, •alleging that J. K. Tulloss was indebted to him in the sum of $1885.31. Tulloss filed his answer and cross-petition. The answer sets forth the facts constituting the defense at great length. It is, in effect, a general denial, with a further allegation that plaintiff below, Richardson, was indebted to him in the sum of $17.65 for goods sold and delivered.
After the issues were made up, the court, with the consent of. both parties, appointed F. J. Fritch referee, to take the testimony and report the same to the court, together with his findings. Afterward the court rendered judgment on the pleadings, evidence and findings of the referee in favor of Richardson, plaintiff below, for $1514 and for costs. The defendant below brings the case here.
There is no contention as to the law in the case. If the facts are as contended for by plaintiff in error, the authorities cited are applicable.
Our investigation has been confined to the one question, Is the evidence sufficient to uphold the findings of the referee and the judgment of the trial court?
The record contains over 300 pages, and a synopsis of the evidence would prolong this decision beyond reason. We are satisfied that the findings of the referee and the judgment of the trial court are supported by the evidence.
The judgment of the district court will be affirmed.
|
[
-14,
124,
-68,
-98,
10,
-32,
42,
26,
85,
-95,
-25,
115,
-19,
-58,
16,
109,
-26,
57,
84,
106,
71,
-77,
23,
97,
-70,
-13,
-5,
-35,
-79,
-23,
-28,
-36,
76,
48,
-126,
-107,
102,
-62,
-57,
-44,
-114,
-116,
-119,
104,
-7,
64,
52,
57,
54,
11,
49,
14,
-29,
46,
29,
-61,
-21,
40,
123,
-85,
80,
-47,
-110,
-115,
93,
6,
-109,
22,
-100,
6,
-54,
42,
-112,
49,
-125,
-8,
122,
-90,
-126,
116,
73,
-71,
9,
102,
102,
33,
28,
-19,
120,
-100,
38,
124,
-115,
-89,
-112,
72,
75,
109,
-74,
-97,
116,
80,
47,
112,
-24,
77,
31,
104,
3,
-54,
-78,
-77,
-113,
116,
12,
2,
-17,
-126,
52,
96,
-51,
-30,
93,
-41,
27,
-101,
-98,
-98
] |
The opinion of the court was delivered by
Wells, J.:
On the 28th day of September, 1891, E. A. M. Smith recovered a judgment in the circuit court of Shawnee county against Charles Dunn in the sum of $3614.85, upon foreclosure proceedings therein, and an order of sale thereon was stayed for a period of six months. On February 10, 1892, Charles Dunn died. On February 25, 1892, E. B. Guild was duly appointed and qualified as administrator of his estate.
On April 4, 1892, said E. A. M. Smith filed his motion in said circuit court to have the judgment revived, and on June 18, 1892, the judgment was revived in the name of E. B. Guild, administrator of the estate of Charles Dunn, deceased, and issue of an order of sale thereon stayed for six months from said date. In December, 1892, the clerk of the circuit court certified said judgment to the district court of said county. The estate of Charles Dunn was insolvent. The personal property belonging thereto was sold under order of the probate court for $1500, which sum constituted all the assets of the estate, the interest in the real estate having been previously sold for the sum of $1500, and said sum applied to the partial payment of plaintiff in error’s judgment. In October, 1894, E. B. Guild resigned as administrator of the estate, and A. D. Robbins became his successor, and in May, 1895, the aforesaid- judgment against Charles Dunn was revived in the district court against the said A. D. Robbins, administrator of his estate. Claims were allowed in the probate court against said estate to the amount of over $10,000, and no part thereof has been paid. On May 11, 1897, Eugene Wolfe, the then owner of the judgment rendered in favor of E. A. M. Smith, filed in the probate court of Shawnee county his petition, praying for the apportionment of the sum arising from said sale of personal property among the creditors of the estate, and that he be adjudged to be entitled to payment without reference to classification, except that the demands for the funeral expenses^ wages of servants, the demands for medicine and medical attendance during the last sickness and the legitimate and proper expense of administration might have precedence thereof. Upon the hearing of the petition, on June 16,1897, the probate court reclassified said demand of Eugene Wolfe, and reelassed said claim as a claim of the sixth class, and directed the administrator to apportion the money in his hands among the creditors of the estate according to the classification aforesaid.
From this order an appeal was taken to the district court, wherein said court held, as conclusions of law : (1) That the demand and claim of the appellant are not such as to entitle him to payment thereof out of the funds now in the hands of the administrator, without reference to classification, except as to the class of demands mentioned in the first and second subdivisions of section 80 of the executors’ and administrators’ act; (2) that the original allowance and classification of said judgment and claim by the probate court as a claim of the fifth class is a final adjudication with respect to the amount and order of payment of said claim. The matter is brought here on a petition in error, for review.
The contention of the plaintiff in error is that the probate and the district courts erred in refusing the application of said Eugene Wolfe to have his judgment claim paid without reference to classification, the contention being that, under the fourth subdivision of section 80, chapter 107, General Statutes of 1897 (Gen. Stat. 1899, § 2768), said plaintiff in error was entitled -to have his judgment paid without reference to classification, except that the class of demands mentioned in the first and second subdivisions of said section should have precedence of said judgment. The defendant in error contends, first, that the district court had no jurisdiction to hear the case, from the fact that no bond was given. The district court found otherwise. Complaint is also made that no bill of exceptions was filed in the case so as to become a part of the record thereof. This was not necessary. There is sufficient in the record to enable this court to decide upon the correctness of the conclusion of law of the trial court.
The next question is: Was the original allowance and classification of said judgment claim by the probate court as a claim of the fifth class a final adjudi-' cation with, respect to the order of the payment thereof? This seems to be answered in the affirmative by the supreme court of this state in Wolfley v. McPherson, 61 Kan. 492, 59 Pac. 1054. But it is claimed that, under the fourth subdivision of section 80, chapter 107, General Statutes of 1897 (Gen. Stat. 1899, § 2768), this judgment should be paid without reference to classification, except as to the first- and second-class claims. Said subdivision reads as follows : "Fourth, judgments rendered against the deceased in his lifetime; but if any such judgments shall be liens upon the real estate of the deceased, and the estate shall be insolvent, such judgments as are liens upon the real estate shall be paid without reference to classification, except the classes of demands mentioned in the first and second subdivisions of this section shall have precedence of such judgments.” It seems to us that this must be construed to mean that where a judgment is a lien upon real estate, to the extent of such lien it may be paid without reference to classification. It was held, in Mendenhall v. Burnette, 58 Kan. 355, 49 Pac. 93, that after revivor an execution could be issued on such a judgment against the lands bound by the lien without resort to the probate court, but that execution could not be levied on personalty or on lands not subject to judgment lien. The legislature evidently intended to give to the judgment creditor the same rights through the probate court that he has without resorting to that court, in the enforcement of his lien, and the same rights as other judgment creditors for the recovery of the deficiency.
The judgment of the district court is affirmed.
|
[
-78,
108,
-100,
-100,
10,
-64,
42,
-118,
66,
-30,
-92,
83,
-83,
83,
17,
107,
-29,
13,
81,
105,
70,
-73,
23,
-81,
-38,
-13,
119,
-51,
-79,
108,
-26,
-33,
76,
36,
2,
-99,
-58,
-62,
73,
92,
-114,
13,
11,
-19,
-7,
8,
52,
111,
52,
73,
5,
31,
-13,
43,
25,
-29,
105,
44,
91,
-87,
80,
-72,
-118,
-121,
111,
31,
17,
70,
-2,
7,
88,
46,
-104,
53,
64,
-24,
115,
38,
-122,
-12,
45,
-119,
44,
98,
99,
49,
-123,
-19,
-8,
-104,
46,
-6,
-113,
103,
-122,
88,
-78,
37,
-74,
-103,
125,
20,
-121,
-2,
-18,
-123,
93,
40,
-123,
-114,
-74,
-123,
-53,
56,
-104,
27,
-13,
-93,
48,
113,
-51,
-126,
92,
-57,
117,
-69,
-114,
-72
] |
The opinion of the court'was delivered by
Mahan, P. J.:
John Pope, one of the defendants in error, brought suit against the other parties to this proceeding in the district court of Rawlins county to quiet his title to a tract of land. The suit was under the provisions of the statute in relation to such cases.
The defendant Carrie E. Havens, plaintiff in error in this proceeding, answered, setting up title by sheriff’s deed made in pursuance of a sale had on a judgment of foreclosure, in a case wherein one John Amidon was plaintiff and John Pope, the defendant in error, and others were defendants. This judgment was rendered May 27, 1891. The note and mortgage sued on were made by the defendant in error John Pope. The order of sale upon which the sheriff’s deed was based was issued January 14,1896. John Amidon died September 1, 1891. The judgment was not revived. In her answer in this case, Carrie E. Havens also asserted title under a tax deed. The case was tried to the court May 16, 1899. The court made special findings of fact and conclusions of law, and thereupon entered judgment for the plaintiff quieting his title absolutely to the land. From this judgment Carrie E. Havens prosecuted this proceeding in error and makes eleven assignments of error. At the conclusion of these assignments counsel say: “As we think there are but two questions in these cases, we present all the errors complained of under two heads. We mention this fact here, so that the court may know that we do not abandon any of the specifications of error. These questions are : First. Were the sheriff’s sale and the subsequent proceedings thereon erroneous? Second. Was the tax deed void?”
Inasmuch as counsel concede that there are but two questions in the case, and very succinctly state them, we do not deem it necessary to notice the several assignments of error in detail, notwithstanding counsel say they do not abandon any of them.
It is said in the brief that the sheriff’s sale and the deed based thereon are not void, first, because the district court has already decreed that the sale and confirmation are valid and this decision is res judicata. This is based upon the fact that an order of the district court was made confirming the sale, notwithstanding the objection of the mortgagor Pope that the writ and sale were void because the plaintiff Amidon was dead and the judgment had not been revived, and the time for a revivor had long since elapsed.
It is further contended that the order is conclusive because Pope prosecuted a proceeding in error therefrom to this court, which was dismissed for want of necessary parties. Many authorities are cited in support of the contention that an order confirming a sale or an order denying a motion to set aside a sale is final and conclusive. However courts of other states may have decided this question, it has long since become a settled rule of law in this state that such an order is not conclusive. This line of decisions began with the case of White-Crow v. White-Wing, 3 Kan. 276. This was followed by Benz v. Hines and Tarr, 3 Kan. 390; Treptow v. Buse, 10 id. 170; Harrison & Willis v. Andrews, 18 id. 535; Comm’rs of Wilson Co. v. McIntosh, 30 id. 239, 1 Pac. 572.
It is next contended that the order of sale and subsequent proceedings based thereon are not void because a revivor was not necessary. In support of this contention, our attention is called to Bigelow et al. v. Renker et al., 25 Ohio St. 542; Head v. Daniels, 38 Kan. 1, 15 Pac. 911; Cowell v. Buckelew, 14 Cal. 640, and many other authorities, to. the effect that in cases where a writ has been issued, and a levy made upon property before the death of the plaintiff or the defendant, the officer may lawfully complete an execution of the writ without revivor. An argument is based upon this, that the decree of sale of specific property is equivalent to a levy, is an appropriation or seizure of the property, and for that reason no revivor is necessary, inasmuch as no one can acquire an interest in the property by descent or by operation of law occasioned by the death of the party, except subject to the decree and the lien thereby created ; that the court has a right to proceed to carry its decree into effect notwithstanding the death of one of the parties. This view is supported by Mr. Jones in his work on Mortgages, volume 2, section 1585, and by the California case referred to above.
It is argued that the judgment of foreclosure is a judgment in rem, not a personal judgment. Under our code the judgment must be a personal judgment, in cases where the parties are brought into court by its process. The judgment in the case of Amidon v. Pope was a personal judgment, with a condition that, in case Pope failed to pay it within a specified time, the land should be sold. In The State v. McArthur, 5 Kan. 280, it was contended that the provision of the code in relation to revivor did not apply to a foreclosure judgment. In that case the relator sought to compel the clerk of the district court, by mandamus, to issue an order of sale upon a dormant judgment of foreclosure. The court, speaking by Chief Justice Kingman, says :
“Section 395 of the code . . . defines ‘a judgment as a final determination of the rights of the parties in an action.’ Whatever was the definition of a judgment at common law, and whatever distinctions existed between a judgment and a decree under the old systems of practice, the section above quoted has decided as to what is a judgment under the code, and it makes no difference whether it is what would formerly be called a judgment, an order, or a decree. The action of the court in the case of the relator was a final determination of the rights of the parties, and consequently was a judgment.”
It is further said therein: “All proceedings upon the judgment while it is dormant are void and will be set aside.” Section 439 of the code (Gen. Stat. 1897, ch. 95, § 438; Gen. Stat, 1899, § 4704) makes provision for the revivor of judgments upon the death of either or both parties thereto. It says:
“If either or both parties die after judgment and before satisfaction thereof, their representatives, real or personal, or both, as the case may require, may be made parties to the same, in the same manner as is prescribed for reviving actions before judgment, and such j udgment may be rendered and execution awarded as might or ought to be given or awarded against the representatives, real or personal, or both, of such deceased party.”
In Halsey v. VanVliet, 27 Kan. 478, the supreme court say, in referring to this provision: “‘May’ means ‘ must ’ or ‘ shall ’ when used in such connection.” Under the decision in The State v. McArthur, supra, the order of sale in this case was issued upon a judgment. The judgment had not been revived nor was it revived at the time of the trial of this case; a judgment of revivor must have been made to render the execution of any validity. The order of sale is a special execution. In Halsey v. VanVliet, supra, it is said that a writ issued upon such a judgment is void ; is an absolute nullity ; that a sale made under it is void and passes no title; that it can be challenged in any collateral way, and, being an absolute nullity, is powerless to uphold the sale and powerless to keep the judgment alive. On page 480, the court further say: “Where the judgment ran directly against the land, as in an action of ejectment or an action to foreclose a specific lien, then it would be proper to make the heirs or the purchaser parties to the revivor.” This is in accordance with the old practice under the writ of scire facias. See Freeman on Executions, volume 1, chapter 8, sections 81, 83, and 86. We conclude that a revivor was necessary.
It is next contended that even if a revivor was necessary under ordinary circumstances, being an impossibility in this case, it ought not to be required. There is nothing cited to support this contention. There is nothing disclosed in the record to justify the position of counsel, as we understand the law. If counsel for the plaintiff, Amidon, in the action of foreclosure, betrayed his trust, that would not relieve either Amidon or those claiming under him the benefits of the judgment from following the law.
It is next contended that the bringing of the action to quiet title constitutes a revivor. In support of this, we are referred to the case of Kothman v. Skaggs, 29 Kan. 5. There is no similarity between the cases. The judgment could not be revived without the consent of Pope. Bringing the action to prevent Amidon and his heirs from having any benefit under the proceeding in itself negatives the idea of consent.
Our conclusion is that the sheriff’s deed was absolutely void and that the plaintiff in error could claim nothing thereunder.
As to the tax deed, the defects upon the face of it were sufficient to defeat it. It was not necessary that the regularity of .the proceeding supporting the deed should be put in issue by a verified answer or denial. It was void on its face, under the rule laid down in Reed v. Morse, 51 Kan. 141, 32 Pac. 900.
Lastly, it is objected that the decree quieting the title was made absolute when it should have been made contingent upon the repayment of taxes to the plaintiff in error. In answer to this, counsel for the defendant in error say that the right of the plaintiff in error to repayment of taxes was not ruled upon by the trial court, and not otherwise disposed of, and ought not to be noticed by this court.
We think the decree necessarily precludes the plaintiff in error as to this tax lien given by the statute and is contrary to its intent. The decree quieting title ought to have been made contingent upon the repayment of taxes paid by the plaintiff in error for the benefit of the defendant in error.
The case will be remanded to the district court with directions to ascertain the amount of taxes, charges and interest to which the plaintiff in error is entitled under the statute, and so modify the decree as to protect her lien therefor.
|
[
-16,
124,
-39,
-82,
58,
64,
10,
8,
-53,
-79,
119,
-37,
-19,
-125,
13,
109,
-28,
41,
85,
120,
69,
-94,
7,
35,
83,
-109,
-41,
-35,
-75,
77,
-12,
-41,
76,
40,
-38,
85,
-58,
-126,
-51,
84,
-58,
-125,
-120,
109,
-39,
64,
52,
59,
82,
77,
117,
44,
-13,
47,
49,
75,
105,
40,
-55,
57,
112,
-72,
-98,
-115,
123,
5,
-111,
53,
-54,
3,
72,
46,
-112,
49,
-126,
-8,
123,
-74,
-122,
-76,
11,
27,
40,
38,
110,
0,
-51,
-17,
-71,
-72,
14,
126,
13,
-90,
-110,
88,
107,
12,
-73,
-99,
125,
80,
71,
-2,
-26,
-100,
29,
108,
13,
-18,
-106,
-77,
13,
-72,
-104,
3,
-13,
3,
48,
113,
-49,
-23,
81,
102,
24,
27,
-113,
-8
] |
The opinion of the court was delivered by
Wells, J.:
There are seven allegations of error argued in the brief of appellant, the first of which is that the verdict was not sustained by the evidence. There was competent evidence submitted to the jury to warrant a conviction, and in such cases the verdict cannot be disturbed.
The second complaint is that the information was not refiled after being re verified. This was not essential ; it was already filed in the case, and it was considered and treated as having been réfiled, but no indorsement was made by the clerk. This is not fatal.
The third allegation of error is in the giving of the ninth instruction, which reads as follows :
“Beer, is presumed to be intoxicating within the meaning of our statute, and under said statute all fermented liquor is presumed to be intoxicating, and, if the defendant at the time and place mentioned in the information sold fermented liquors, then it devolves upon him to remove such presumption of the law by evidence. It is claimed upon the part of the defendant that, if he sold any liquors at the time and place as charged in the information, such liquors were not intoxicating, and upon that issue evidence has been offered; and it is for you to determine, from all the evidence in the case, whether or not the liquors sold by the defendant, if any, upon which the state relies for a conviction, were intoxicating, within the meaning of our statute.”
It is contended that the words ‘ ‘ beyond a reasonable doubt” should have been inserted in the last sentence of said instruction so as to read: “It is for you to determine, from all the evidence in the case, beyond a reasonable doubt, whether or not the liquors sold by the defendant, if any, upon which the state relies for a conviction, were intoxicating, within the meaning of our statute.” Appellant in the oral argument of the case urged that the instruction as given threw the burden of proof upon the defendant to establish the non-intoxicating qualities of the liquor sold, and did not give him the benefit of a reasonable doubt upon that subject. We do not think the contention is well founded. The court had previously instructed the j ury in its third, fourth and fifth instructions as to the burden of proof and upon the law as to a reasonable doubt, and that, before they could convict the defendant of any offense charged in the information, “every material fact necessary to constitute such offense must be proved by the evidence beyond a reasonable doubt.” The case of The State v. Grinstead, ante, p. 78, 61 Pac. 975, is cited by the appellant in support of his contention ; but in that case the jury were told : “ It is incumbent upon him (the defendant) to satisfy you that it was not published with his knowledge or authority, and unless he has satisfied you, you should return a verdict of guilty in this case.” A very different instruction from the one given herein. '
The fourth and sixth allegations of error are that in drawing the necessary additional jurors the names drawn were limited to those residing within six miles of the court-room. The order of the court in this matter was made for the saving of time and expense, was not objected to by defendant, and that he was not prejudiced thereby is evidenced by the fact that he used only three of the peremptory challenges. There-was no reversible error in this. The fifth allegation of error appears to be waived, and the only one remaining is the seventh, which is the alleged misconduct of the court in calling in the jury and giving them an admonition to be careful and not allow any outsider bo tamper with them. This was done after questioning one of the jurors as to rumors that had reached the court of misconduct on the part of said juryman. We do not think the judge was guilty of any misconduct in this matter.
The judgment will be affirmed.
|
[
-77,
-22,
-19,
-99,
42,
96,
42,
-100,
65,
-123,
-9,
115,
-19,
-45,
5,
113,
-5,
125,
84,
106,
-42,
-73,
7,
65,
-42,
-13,
-46,
-43,
-79,
110,
-25,
124,
76,
-76,
-62,
-43,
102,
-54,
-45,
-44,
-118,
29,
25,
-23,
91,
-104,
48,
123,
102,
15,
33,
-97,
-29,
44,
24,
-53,
-87,
44,
75,
29,
64,
-72,
-104,
-99,
77,
6,
-77,
54,
-52,
-61,
-40,
46,
-104,
49,
9,
-24,
-13,
-76,
-56,
-76,
45,
-71,
12,
98,
107,
33,
5,
-17,
-24,
-119,
47,
-18,
-115,
38,
24,
9,
105,
-95,
-74,
-67,
52,
48,
7,
120,
-21,
93,
91,
124,
-122,
-121,
-90,
-79,
-117,
56,
-112,
81,
-53,
-93,
16,
101,
-59,
-20,
92,
85,
84,
25,
-114,
-106
] |
Tlie opinion of the court was delivered by
Schoonover, J. :
This was a proceeding in the district court of Osage county to revive a judgment rendered in said court on the 15th day of June, 1891, in favor of the defendant in error and against Adolph Goodwin and Lovell Goodwin, partners doing business as Goodwin Brothers.
The motion to revive was filed on the 9th day of June, 1897. The notice of the hearing is dated June 8,1897, and fixes the time for the hearing on the 12th day of June. The notice was served on the plaintiffs in error in Shawnee county and duly returned. At the hearing of the motion, on June 12, Lovell Goodwin appeared specially as follows :
“Comes now the defendant, Lovell Goodwin, one of the defendants in the above-entitled action, and appearing specially for the purpose of setting aside the attempted service of notice of a certain motion of revivor of judgment herein, and for no other purpose.
“The said Lovell Goodwin, so appearing specially, and for no other purpose, asks that the attempted service upon him of notice of a motion for a revivor of a dormant judgment in this action be set aside and held for naught, for the reason that said purported notice issued to the sheriff of Shawnee county, Kansas, on the 8th day of June, 1897, for service, and less than ten days before the time therein named when said motion would be heard and which attempted notice has been returned into this court less than ten days after the issuance thereof and which said notice was issued to the sheriff of Shawnee county, Kansas, and made less than ten days from the issue thereof.”
The judgment rendered by the court upon the hearing of the motion is as follows :
“And now, to wit, on this 12th day of June, 1897, it being one of the days of the regular June, 1897, term of said court, this cause came on for hearing upon the motion of the plaintiff herein for a revivor of the judgment heretofore rendered on the 15th day of June, 1891, in the above-action against the defendant herein; said judgment being for the sum of $750.85, drawing interest at the rate of twelve per cent, per annum from the date of its rendition, and costs of said action in the sum of $10.55. The plaintiff appeared by its attorney, Eobert C. Heizer, and the defendant, Adolph Goodwin, appeared not, though duly and legally served with notice of the pendency of this motion. The defendant Lovell Goodwin appeared herein by his attorneys, Wilson & Forbes, specially and for the purpose of setting aside and having held for naught the notice served upon him of the pendency of said motion for a revivor of said judgment.
“The court, after hearing the evidence in this cause and arguments of counsel, doth find that both of said defendants herein had due and legal notice of the pendency of this motion.
“ It is therefore considered, ordered, adjudged and decreed by the court that said judgment referred to in said notice and motion and in said above-entitled action be revived, and that execution issue tbereon and herein; to which said ruling and judgment of this court the defendant Lovell Goodwin excepts.
“For good cause shown, the said defendant Lovell Goodwin is given sixty days in which to make and serve a case for the supreme or appellate court of the state of Kansas upon the plaintiff, and twenty days given to said plaintiff to suggest amendments thereto."
The consideration of this proceeding in error is challenged by defendant in error in its brief, as follows :
“Adolph Goodwin and Lovell Goodwin were and are joint judgment debtors in the judgment sought to be revived in the district court of Osage county, Kansas. The proceedings were instituted in said court to revive such.judgment against each and both of said judgment debtors. Only one of these joint debtors appeared to contest the granting of the order sought by the proceedings. The court, upon the hearing of the motion, made an order reviving the judgment against both defendants jointly, and but one, Lovell Goodwin, plaintiff in error, excepted to the ruling of the court, and he alone brings this proceeding in error. A reversal of the judgment of the district court in this case would leave the judgment in that court against both Adolph Goodwin and plaintiff in error, Lovell Goodwin, stand revived alone against Adolph Goodwin. He should have been made a party to this proceeding in error, either as plaintiff or defendant."
In the case of Manufacturing Co. v. Richardson, 57 Kan. 661, 47 Pac. 537, the supreme court says:
“A petition in error by one of five defendants against whom a judgment was rendered jointly for the recovery of specific personal property or the value thereof, to which the other defendants are not made parties either as plaintiffs or defendants in error, must be dismissed for want of necessary parties."
Justice Allen, in the opinion, says : support of this proposition, but we shall refer to only the following: McPherson v. Storch, 49 Kan. 313, 30 Pac. 480; Loan Co. v. Lumber Co., 53 id. 677, 37 Pac. 132; Norton v. Wood, 55 id. 559, 40 Pac. 911; Investment Co. v. National Bank, 56 id. 49, 42 Pac. 321; Bain v. Conn. M. Life Ins. Co., 3 Kan. App. 346, 40 Pac. 817; Bonebrake v. Ætna Life Ins. Co., 3 id. 708, 41 Pac. 67. Many cases have been dismissed on this ground which are not reported.”
“A long line of reported cases might be cited in
Applying the law as stated in the decisions cited, the petition in error will be dismissed.
|
[
-16,
102,
-79,
93,
10,
96,
34,
-102,
70,
-95,
54,
83,
-55,
-117,
1,
125,
-58,
25,
-15,
120,
-26,
-73,
23,
59,
-110,
-13,
-47,
-51,
-71,
93,
-26,
-11,
76,
48,
74,
-35,
70,
-32,
-59,
92,
-114,
12,
9,
-32,
91,
96,
48,
121,
22,
9,
49,
-82,
-13,
43,
60,
-61,
105,
44,
-55,
-86,
81,
-111,
-21,
-121,
127,
21,
1,
6,
-108,
70,
64,
-82,
-112,
53,
72,
-8,
83,
-74,
-122,
84,
5,
-103,
13,
58,
99,
113,
21,
-81,
-68,
-120,
31,
81,
-115,
-57,
-128,
0,
99,
44,
-106,
-99,
116,
20,
7,
-2,
-19,
-123,
21,
40,
3,
-114,
-74,
-69,
-33,
34,
28,
19,
-13,
7,
48,
112,
-51,
-78,
92,
70,
82,
59,
-113,
-72
] |
The opinion of the court was delivered by
McElkoy, J.:
The petitioner is restrained of his liberty by the marshal of the city of Topeka, under a warrant issued by the police judge upon complaint charging him in three counts with the violation of ordinance No. 2061, of the city of Topeka. The first count charged him with the unlawful selling of intoxicating liquors; the second, the unlawful keeping of a club-room where intoxicating liquors were kept for sale and distribution. among its members ; and the third charged him with maintaining a place where persons were permitted to resort for the purpose of drinking intoxicating liquors, and thereby maintaining a nuisance under the ordinance.
The title of the ordinance and sections 1, 5, 6 and 9 are herein copied in full; the substance only of other sections is set out:
“An Ordinance prohibiting the sale of intoxicating liquors and to prohibit and suppress the keeping of places where intoxicating liquors are sold, except for lawful purposes.
“Section 1. It shall be unlawful for any person to sell or barter any spirituous, malt, vinous, fermented or other intoxicating liquor in this city, unless such person has a druggist permit therefor from the probate judge of Shawnee county and such liquors are sold for medical, scientific or mechanical purposes.”
Section 2 attempts to construe the first as to what liquors are included in the prohibition.
■Section 3 provides that the giving away of such liquors, or any shift or device to evade the provisions of the ordinance, shall be deemed an unlawful selling.
Section 4 provides that it shall be unlawful for any person to keep or maintain, or aid, assist or abet in keeping or maintaining, a place where intoxicating liquors are sold, bartered, or given away in violation of the ordinance, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage.
“Sec. 5. It shall be unlawful for any person, di" rectly or indirectly, to keep or maintain, by himself or by associating or combining with others, or in any manner to aid, assist or abet in keeping or maintaining, any club-room, or other place in this city, in which any intoxicating liquor is received or kept for the purpose of barter or trade as a beverage, or for distribution or division among the members of a club or association by any means whatsoever; and any place so kept or maintained shall be deemed a common nuisance, and any person who shall use, barter, sell or give away, or assist or abet another in bartering, selling, or giving away, any intoxicating liquors so received or kept shall be deemed guilty of a violation of this ordinance, and upon conviction thereof shall be punished by a fine of not less than one hundred dollars or not exceeding five hundred dollars, or by imprisonment in the city jail not less than thirty days nor more than six months for each offense.
“Seo. 6. All places where intoxicating liquors are sold, bartered or given away in violation of any of the provisions of this ordinance, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of this ordinance, are hereby declared to be a common nuisance, and shall be suppressed and abated as such, as hereinafter provided.”
Section 7 attempts to confer upon the police judge jurisdiction to cause the seizure, forfeiture and de struction of intoxicating liquors, bottles, glasses, barrels and other property kept or used in the prohibited places, and for the arrest of persons in connection therewith.
Section 8 provides that in all prosecutions under the ordinance it shall not be necessary to state the kind of liquor kept, sold, or used, or the name of the person to whom sold, nor to describe the place where sold, except in prosecutions for keeping a nuisance, and that it shall not be necessary in the first instance in such prosecutions for the city to prove that the defendant did not have a permit to sell liquors.
“Sec. 9. Any person violating any of the provisions of this ordinance, except section 5, shall upon conviction be punished by a fine of not less than one hundred dollars and not exceeding five hundred dollars and by imprisonment in the city jail not less than thirty days and not exceeding ninety days for each offense.”
Section 10 repeals ordinances in conflict therewith.
The general powers of the mayor and council of cities of the first class are delegated by section 710, General Statutes of 1899 (Gen. Stat. 1897, ch. 32, §§ 89-92), and, so far as applicable to the question under consideration,«are as follows:
“Sec. 11. The mayor and council shall have the care, management and control of the city and its property and finance, and shall have power to enact ordinances for the purpose hereinafter named, not regugnant to the constitution, and laws of this state, and such ordinances to alter, modify, and repeal, and shall have power:
“Eleventh. To make regulations to secure the general health of the city; to prevent and remove nuisances. . . .
“Twenty-eighth. To prohibit and suppress tippling shops, saloons, dram-shops, club-rooms, . . . and to provide for the punishment thereof.
“Thirty-third. To make all needful police regulations necessary for the preservation, good order and peace of the city. . . .
‘ ‘ Thirty-seventh. To regulate the police of the city, and to impose fines, forfeitures and penalties for the breach of any ordinance, and to provide for the recovery and collection thereof, and in default of payment to provide for confinement in the city prison or at hard labor.”
The contention of the petitioner is that the ordinance is void. If this contention is sustained — that is, if the ordinance is for any reason void — the petitioner must be discharged.
The title of the ordinance reads: “An ordinance prohibiting the sale of intoxicating liquors and to prohibit and suppress the keeping of places where intoxicating liquors are sold, except for lawful purposes.” This title is not sufficient to uphold the sections of the ordinance which refer to club-houses, nor the sections with reference to nuisances. In regard to section 9 of the ordinance, the punishment provided for the unlawful selling of intoxicating liquors, as fixed by said section, is not authorized; that is, the provisions of the statute do not authorize imprisonment as a punishment for the violation of the ordinances, except for the non-payment of road tax. (Gen. Stat. 1899, § 710, subdiv. 34; Gen. Stat. 1897, ch. 32, §§ 89-92.) This leaves no provision of the ordinance under which the petitioner can be prosecuted upon any count of the complaint.
The petitioner is therefore discharged.
|
[
-16,
-18,
-7,
-35,
58,
-32,
41,
-66,
81,
-77,
-9,
83,
-55,
-48,
5,
107,
-21,
127,
-108,
91,
-30,
-74,
71,
65,
-62,
-13,
-47,
-43,
-80,
111,
-26,
-4,
109,
48,
-53,
-11,
-122,
-55,
-45,
-34,
-118,
5,
9,
-31,
91,
1,
52,
59,
3,
2,
-47,
31,
-29,
44,
24,
-61,
105,
108,
75,
13,
112,
-8,
-103,
-107,
124,
22,
-125,
32,
-100,
-123,
-56,
15,
-102,
49,
8,
-24,
115,
-76,
-122,
52,
13,
-119,
13,
102,
98,
32,
29,
-17,
-88,
-119,
45,
-38,
-99,
-89,
-67,
89,
96,
-120,
-106,
-99,
116,
16,
15,
-12,
-30,
21,
25,
60,
-97,
-118,
-108,
-79,
-113,
48,
-126,
87,
-17,
-89,
33,
65,
-59,
124,
94,
-11,
50,
-101,
-114,
84
] |
The opinion of the court was .delivered by
Wells, J.:
This was a prosecution for criminal libel brought in the district court of Doniphan county. The defendant was found guilty and appeals to this court.
There are four grounds of error alleged and we will consider them in order.
1. That the court erred in overruling the appellant’s motion to quash the information for the reason that it does not state a public offense. The information charges, in substance, that on August 5, 1899, Pool Grinstead was the editor and publisher, in Doniphan county, Kansas, of a weekly newspaper, and, with the intent to expose one Albert Perry to hatred and contempt and to deprive him of public confidence, did then and there unlawfully, wilfully and maliciously compose and publish, and cause and procure to be composed and published in said paper, of and concerning said Albert Perry, the following false, malicious, defamatory and libelous words: “With Leland’s brother-in-law,” meaning thereby the said Albert Perry-, “as the chairman of the democratic committee,” meaning thereby the democratic central-committee of Doniphan county, Kansas, “even that party was run,” meaning the democratic party in Doniphan county, during the campaign in which said Albert Perry was chairman of said democratic central committee, “pretty much as Leland directed,” meaning thereby Cyrus Leland, who was a leading republican in said county, and meaning thereby that the said Albert Perry, who, during the time referred to, was chairman of the democratic central committee of the democratic party of Doniphan county, Kansas, as such chairman betrayed the trust and confidence reposed in him by the said democratic party and its central committee, and that the said Albert Perry, as such chairman suffered and permitted the said Cyrus Leland to control in the interest of the republican party the acts of said Albert Perry as such chairman, to the great scandal, injury and disgrace of the said Albert Perry.
The majority of the court hold that the information does not state an offense, within the authority of The State v. Elliott, ante, p. 90, 61 Pac. 981, and that the court erred in overruling the motion to quash.
It is contended by the appellant that the law always gives to words their usual and ordinary meaning, and presumes that men are innocent of crime or criminal intentions, whether directing the affairs of their own party or of some other. This is not true. The law does not always give to words their usual and ordi nary meaning, and for the leader of one political party co be controlled as to his political action by the leader of the opposite political party is neither honest nor creditable.
The next contention is that the information does not charge a publication. We think it does. It charges that the defendant “then and there did compose and publish, and caused to be composed and published,” not his paper, as argued by the appellant, but the matter complained of.
The remaining objection to the information is that it was not properly verified. It states that “thefacts therein set forth are true.” And it is said that facts are always true, and, therefore, said words are meaningless. This is true if the word “fact” is taken in its common and primary meaning but a secondary meaning of the word is permissible to represent the thing asserted. The term “facts” was held to be equivalent to “matters” when used in a jurat, in Whelpley v.Van Epps, 9 Paige, 332. I think the motion to quash was properly overruled.
2. That the court erred in overruling the appellant's motion and petition for a change of venue. The facts upon which the defendant relied for a change of venue are substantially the same as in the case No. 821, The State v. Grinstead, just decided (post, p. 78); the majority of the court hold that the trial court erred in overruling such motion, but the writer hereof thinks otherwise. The application for a change of venue was supported by the oral testimony of the defendant alone, with exhibits of articles published by him against the judge ; and while his evidence discloses an abundance of provocation on his part to excite the prejudice and enmity of an average person under ordinary circumstances, the only evidence that it had that effect upon the judge was that on one occasion the judge failed to respond when spoken to by the defendant, and whether this was intentional or not is left somewhat to conjecture. In the face of the fact that the judge expressly denies that he had any ill will or prejudice against said defendant on any account whatever, I do not think there was sufficient evidence to justify us in saying that he was mistaken and in reversing the case for that reason.
3. That the court misdirected the jury in material matters of law. The court properly instructed the jury upon the law of the burden of proof and of a reasonable doubt; but in the eighth instruction he told them:
‘ ‘ If you believe from the evidence in this case that the defendant was not present and did not know of the insertion in the Wathena Star of the alleged libelous article complained of in the information, and in no manner counseled, aided or abetted in the publication of such article, then you should find the defendant not guilty.”
And in the thirteenth : “It is incumbent upon him (the defendant) to satisfy you that it was not published with his knowledge or authority ; and unless he has satisfied you, you should return a verdict of guilty in this case.” The nineteenth instruction reads :
“A publisher of a newspaper is responsible for the matter of his paper, as though the same was inserted by himself or published by his express direction, unless it is shown by the evidence that he did not publish, or aid or assist in such publication, and did not know of the same.”
These instructions would, by themselves, naturally convey to the minds of the jury the idea that, as to the defenses claimed by the defendant, the burden of proof was upon him to establish them, and if he failed to do so to their satisfaction they must find a verdict of guilty, and this impression would not be removed by their being told in general terms that the burden of proof in a criminal case never shifts from the state to the defendant. The instructions referred to are erroneous.
Our attention is also called to the fourteenth instruction, in which the jury are told that the article complained of is libelous, and thus, it is claimed, the court decided the case for the jury. We do not think the words complained of, unaccompanied by explanation or innuendo, are necessarily libelous : “With Leland’s brother-in-law as chairman of the democratic committee, even that party was run pretty much as Leland directed.” These words, by themselves, could convey no definite impression to the mind of a person entirely ignorant of the surrounding conditions and circumstances. For the errors hereinbefore noticed the motion for a new trial should have been allowed.
The judgment of the trial court is reversed and a new trial directed.
|
[
-16,
110,
-7,
31,
40,
100,
-126,
-66,
1,
-95,
-89,
115,
73,
-49,
12,
113,
-5,
45,
84,
105,
-58,
-105,
23,
-95,
-110,
-45,
123,
-43,
51,
88,
-2,
-3,
76,
48,
-118,
-43,
102,
74,
-57,
-44,
-122,
-111,
41,
-48,
83,
-56,
44,
123,
50,
10,
65,
46,
-77,
58,
28,
83,
-120,
44,
-39,
62,
65,
-79,
-98,
-97,
124,
22,
33,
38,
-100,
-121,
-8,
46,
-104,
57,
0,
-84,
-13,
-122,
2,
-11,
15,
-55,
12,
-22,
107,
97,
-75,
-83,
46,
-88,
31,
-65,
-99,
-89,
20,
65,
105,
40,
-74,
-103,
54,
52,
-117,
122,
-14,
-123,
29,
108,
-127,
-117,
-112,
-77,
79,
44,
-108,
51,
-29,
-76,
16,
116,
-63,
-78,
93,
71,
52,
-77,
-97,
-76
] |
The opinion of the court was delivered by
Mahan, P. J.:
This was an action by the defendant in error against the insurance company to recover upon a life policy. The company answered that, by the conditions of the policy, it was authorized to pay the money due on the policy to either the executor, administrator, husband or wife, or any relative by blood, or lawful beneficiary of the insured, at its election, and a production by the company of the policy and a receipt in full, signed by either of such persons, should be conclusive evidence that all claims against the company under the policy had been satisfied ; and that it had elected to pay and paid the money to one Bernard B. Whitbeck, the husband of the insured. In addition to this there was a general denial.
The plaintiff offered evidence of his appointment, of the death of the insured, proof of loss, etc., sufficient to entitle him to recover, and rested. The defendant thereupon offered in evidence a receipt signed by Bernard B. Whitbeck for $500, purporting to be a payment of the money due upon this policy, without explanation. This was objected to as being incompetent, irrelevant, and immaterial, which objection was sustained by the court. It then offered in evidence a check purporting to be signed by one J. M. Craig, as president, and George B. Woodard, upon the National Shoe and Leather Bank of New York, and payable to Bernard B. Whitbeck. This was objected to by the plaintiff as being incompetent, irrelevant, and immaterial, and not tending to prove any issue in the case, which objection was sustained by the court. There was some further offer of testimony, and the defendant rested. The court found for the plaintiff and gave him judgment upon the policy. However, before offering evidence in behalf of the defendant, there was a demurrer to the evidence of the plaintiff, which was overruled.
The assignments of error are: 1. That the court' overruled a demurrer to the evidence. 2. That 'the court refused to receive in evidence the release and receipt offered by defendant. 3. That the court erred .in refusing to receive in evidence a check. 4. That the court erred in denying the plaintiff in error a new trial. 5. That the court erred in rendering judgment in favor of the defendant in error and against the plaintiff in error.
It is not pointed out in the argument wherein the evidence of the plaintiff is insufficient to sustain his cause of action. "We find upon examination of the record no deficiency. We are of the opinion that the demurrer to the evidence was rightly overruled. The release and receipt purporting to be signed by Bernard B. Whitbeck did not tend to prove any allegation of the answer. The same must be said of the check offered in evidence and payable to the order of Bernard B. Whit-beck. It did not tend to establish any part of the defense, was not admissible in evidence without explanation, and was properly rejected. So we say that the second and third assignments of error cannot be sustained.
Under the fourth assignment of error, nothing is pointed out in the argument as occurring in the course of the trial that would warrant the trial court in sustaining the motion or this court in directing a new trial. This being the case, the judgment for the plaintiff necessarily followed. Much of the argument in the brief is devoted to the discussion of the right of the company under the policy to pay the amount due thereon to Bernard B. Whitbeck, the husband of the de ceased. But inasmuch as no competent evidence was offered tending to establish the defense of payment, we do not see how it becomes material.
The judgment of the district court is affirmed.
McElkoy, J., concurring.
|
[
-80,
124,
-15,
-67,
8,
96,
42,
90,
85,
-79,
-89,
83,
-7,
-29,
20,
107,
-2,
-87,
-47,
98,
-41,
-93,
7,
-94,
-42,
-78,
-7,
-60,
-79,
125,
-18,
93,
76,
48,
-54,
-43,
102,
-126,
-59,
52,
-114,
12,
-72,
-19,
-39,
72,
48,
-55,
-48,
75,
117,
-98,
-29,
42,
27,
-62,
-23,
40,
123,
49,
-40,
-72,
-117,
-123,
127,
18,
-80,
21,
-102,
43,
88,
46,
-104,
49,
-119,
-8,
122,
-90,
-58,
116,
35,
-103,
24,
102,
103,
17,
21,
-19,
-8,
-103,
47,
108,
15,
-84,
-110,
112,
-117,
13,
-73,
-67,
102,
26,
-121,
-4,
-20,
84,
29,
44,
1,
-97,
-42,
-77,
-33,
-10,
24,
-117,
-18,
43,
36,
113,
-49,
-88,
93,
-25,
122,
17,
-98,
-106
] |
The opinion of the court was delivered by
Mahan, P. J.:
The plaintiff in error seeks by this proceeding to reverse an order of the district court of Jackson county denying his motion to discharge certain real estate from the custody of a receiver in the case.
He first assigns for error that the district court refused to hear testimony upon the motion, and refused to consider any question except the jurisdiction of the court to make the appointment in the first instance; second, that the court erred in denying his motion to release that part of the real estate which was not the subject-matter of the suit; and third, in denying the motion to set aside the original order appointing a receiver, for want of jurisdiction. There are two other formal assignments, but they cover the same ground.
The main action, to which this proceeding is auxiliary, was in the nature of ejectment by Josie Webb, as a tenant in common with John S. Branner, to recover an undivided one-fourth interest in certain real estate in the city of Topeka, the possession of which was in Branner, he denying the cotenancy, and his conduct amounting to an exclusion of the plaintiff as cotenant. The appointment of a receiver was made in the first instance without notice to the defendant Branner, but by his conduct since he has acquiesced in the ex parts appointment so far as to preclude him from questioning the appointment for that reason. The order appointing the receiver, however, directed him to take, possession 'of considerable other property, as well as the entire property in controversy, upon which the plaintiff had levied an execution, and which had been sold to pay the judgment for rents rendered in favor of the plaintiff and against the defendant in this cause. So the appointment of the receiver was made after judgment, pending an appeal. In this judgment the plaintiff, Josie Webb, had prevailed, recovering her one-fourth interest and $4500 for rents. The sale had not been confirmed at the time the receiver was appointed and was subsequently set aside.
The primary question in the case under this proceeding in error is, Had the district judge jurisdiction under the statute to appoint the receiver for property other than that in controversy in the case, merely because an execution had been issued and levied thereon and the land sold thereunder ? It was not in any sense a supplementary proceeding in aid of execution, under the statute. The power to appoint a receiver in actions under the code is clearly defined and restricted by the provisions of the code, and under none of them had the district court jurisdiction to appoint a receiver, under the.circumstances and conditions of this case. The power to do so is not conferred by law. The supposed exigency making it necessary to appoint a receiver was that some time would elapse before a confirmation of the sale could be had; that rents had accrued before the sale and were accruing after the sale, and the tenants did not know to whom to pay them. After the sale was set aside no such exigency existed. Josie Webb could make no claim to other property of the defendant, except as purchaser under her own writ. So, whether the rent was paid to Branner or another person, or at all, did not concern her. At the time this motion was made and heard the sale had been set aside, and even though the power existed in the district court to appoint a receiver, the reason therefor had ceased to exist, and the court ought to have sustained the motion upon that ground, if not for a want of authority to make it in the first instance.
Under the circumstances, the- court had undoubted authority to appoint a receiver to collect the rents and profits of the entire property in controversy — not only the interest of the plaintiff, from which she was excluded, but the interest of the defendant as well. But at the time this motion was made to discharge the property from the custody of the receiver, the plaintiff, Josie Webb, had been put in possession of her interest in the property, whereby she was enabled to collect the rents and profits therefor herself without the aid of a receiver. The judgment had been carried into effect, except that part of it which adjudged the defendant to pay money for rents collected theretofore— a mere personal judgment against Branner ; so there existed at the time the motion was made - and heard no reason for continuing the property in controversy— that is, the interest of the defendant Branner — in the custody of a receiver. The interest of the plaintiff had been theretofore, upon her application, discharged from the custody of the receiver.
There are several objections made by the defendant in error to a review of the case by this court. The first is, that the record discloses that more than $2000 is in controversy, which would be affected by the order discharging the' property from the custody of the receiver. We are of the opinion that the record does not sustain this contention. The second objection is that this proceeding in error was not begun within the time allowed by law. The basis of this contention is that there had been a prior motion made to set aside the order appointing the receiver and to discharge the property, upon the ground that the court had no jurisdiction to make the appointment. To this we answer, first, that if the order, so far as it affected the property not in controversy in the case, was without the jurisdiction of the district court, it was a void order, and a motion could be made to vacate it at any time, under the provisions of the code, and the making of a prior motion and the denial by the court did not infuse into the order a vitality that it had not before. A second answer is that the conditions with i*espect to the property had changed. The grounds for retaining the property in the custody of the receiver, if any there were, no longer existed. If the rule prevailed that because at one time a motion to discharge property from the custody of a receiver was denied such order was conclusive, res judicata, and barred any other motion looking to the same result though based on different conditions, property might never be discharged from the custody of a receiver when once put in his hands. The motion to discharge the property from the custody of the receiver ought to have been sustained. The motion to set aside the order making an appointment in the first instance, so far as it affected the property not in controversy in the cause, ought to have been sustained. The order denying these motions is reversed, and the -case remanded with directions to the court to sustain the motion to vacate the order appointing the receiver in the first instance so far as it affected the property of the defendant Branner not in the controversy in the cause, and to sustain the motion to discharge the defendant Branner’s interest in the property in controversy.
|
[
-112,
-20,
-39,
62,
26,
96,
42,
-72,
113,
-77,
-9,
87,
105,
-50,
4,
105,
-14,
41,
-47,
121,
-61,
-79,
3,
-88,
-10,
-45,
-45,
85,
-76,
76,
118,
-33,
72,
32,
66,
-41,
70,
-62,
-123,
84,
-114,
7,
25,
108,
-39,
72,
48,
43,
18,
9,
85,
-18,
-13,
45,
25,
-61,
73,
42,
-69,
57,
65,
-40,
-101,
-123,
-1,
4,
-80,
53,
-48,
3,
88,
122,
-110,
61,
0,
-23,
83,
-90,
-110,
116,
3,
27,
40,
102,
98,
1,
13,
-17,
-8,
-71,
14,
125,
-115,
-90,
-111,
72,
42,
73,
-106,
-100,
93,
20,
71,
-4,
-18,
-124,
29,
-20,
11,
-49,
-106,
-111,
-113,
61,
-102,
-101,
-17,
67,
48,
112,
-49,
-94,
92,
103,
18,
27,
-98,
-71
] |
The opinion of the court was delivered by
Milton, J.:
On December 24, 1896, the plaintiff in error as principal, and the defendants in error as sureties, executed and delivered to the State Bank of Haven, a Kansas banking corporation, their promissory note for $200, due in thirty days from that date, and on the 30th day of the following month, the note being due and unpaid, the sureties brought a suit thereon against Vincent before a justice of the peace of Reno county, a copy of the note being filed as the bill of particulars. The plaintiffs caused garnishment process to be issued and served on several parties. The justice entered judgment in favor of the sureties for the amount of the note and costs. Vincent carried the case to the district court, where the plaintiffs filed a petition which purported to set up two causes of action. The defendant attacked the petition by motion, and as a result the second cause of action, wherein the plaintiffs alleged they were the owners of the note, was stricken out and the first cause of action amended. The first cause of action as amended set forth a copy of the note, and alleged its execution and delivery by the defendant as principal and the plaintiffs as sureties; that at the maturity of the note the defendant had wholly failed and refused to pay the same or any part thereof; and that the action was brought for the purpose of compelling the defendant to pay the note to the State Bank of Haven, the owner and holder thereof. Thereupon the defendant demurred to the petition for failure to state a cause of action, and for the reason that the court had no jurisdiction. The demurrer was overruled. The defendant then filed an answer, in which the material averment.is, substantially, that the court had no jurisdiction over the subject-matter of the cause of action, for the reason that such cause of action was not within the jurisdiction of the justice of the peace. The other averments of the answer do not require special mention. On the trial before the court the following admissions were made and entered of record:
“Plaintiffs admit that at the commencement of thia. suit the holder and owner of the note in suit, the Bank of Haven, was willing to extend the time of payment on said note, and the Bank of Haven was not pressing the maker or sureties for payment. Defendant admits that the plaintiffs were sureties on the said note for the defendant.”
The court rendered judgment in favor of the plaintiff, the journal entry thereof reciting :
“It is therefore considered, ordered and adjudged and decreed by the court that the plaintiffs, W. H. Donnell and G.W. Van Burén, sr., do have and recover of and from the said defendant, I. B. Vincent, the sum of two hundred twenty-three and T6^°T dollars ($223.60), and that the said sum bear interest at the rate of ten per cent, per annum from date thereof, to which ruling of the court the defendant, I. B. Vincent, duly excepted. It is further ordered and decreed by the court that execution issue upon said judgment in favor of the plaintiff as against the defendant, I. B. Vincent, but the plaintiff's, G. W. Van Burén andW. H. Donnell, shall not be entitled to receive any moneys collected upon said execution until the original promissory note, a copy of which is set forth in the plaintiffs’ petition, is duly filed for cancelation with the clerk of this court.”
Th eonly question requiring decision is whether a justice of the peace has jurisdiction of an action brought by the surety against the principal on a note which has matured and is unpaid, to compel payment of the obligation. Section 529 of the civil code (Gen. Stat. 1897, ch. 95, § 549; Gen. Stat. 1899, § 4820) reads:
“A surety may maintain an action against his prin cipal to compel him to discharge the debt or liability for which the surety is bound, after the same has become due.”
Section 2 of the act regulating the jurisdiction and procedure before justices of the peace (Gen. Stat. 1897, ch. 103, § 20; Gen. Stat. 1899, § 5037), reads:
“Under the limitations and restrictions herein provided, justices of the peace shall have original jurisdiction of civil actions for the recovery of money only, and to try and determine the same, where the amount claimed does not exceed $300.”
Section 185 of the same act (Gen. Stat, 1897, ch. 103, § 14; Gen. Stat. 1899, § 5229) reads:
‘ ‘ The provisions of an act entitled ‘ An act to establish a code of civil procedure ’ which are in their nature applicable to the jurisdiction and proceedings before justices, and in respect to which no special provision is made by statute, are applicable to proceedings before justices of the peace.”
Counsel state their inability to aid the court by the citation of authorities bearing on the question before us.
Under section 529, supra, a right of action in favor of the sureties arose when the principal failed to pay the note at its maturity. There is another statute which authorizes an action by the surety against the principal before the obligation matures. It is not necessary in either case that the surety should first pay the n©te, nor does it appear to be necessary that the owner of the note should be made a party to the action. The law in such cases favors sureties. Neither the procedure by which the surety is to obtain the relief to which he is entitled, nor the form of judgment to be entered in his favor, is stated in the statute. The judgment entered in this action granted the relief to which the sureties were entitled, and at the same time protected both the holder of the note and the principal maker thereof. It is a judgment “for the recovery of money only” in favor of the sureties. It involves nothing in its nature different from any ordinary money judgment except the provision made for the protection of the principal debtor and the holder of the note. It is our conclusion that a justice of the peace has jurisdiction to try such an action and to render such a judgment, where the amount involved is less than $300.
The judgment of the district court is affirmed.
|
[
-14,
-20,
-16,
63,
72,
96,
58,
-70,
99,
-95,
49,
-45,
-23,
-61,
5,
105,
-10,
29,
-12,
122,
68,
-77,
7,
64,
-46,
-77,
-15,
85,
-79,
127,
-28,
-33,
12,
48,
-54,
-35,
-58,
-62,
-63,
-100,
78,
36,
9,
100,
-47,
-120,
48,
59,
82,
72,
113,
47,
-29,
43,
31,
75,
109,
45,
-55,
-67,
-16,
-16,
-86,
-123,
127,
16,
17,
39,
-40,
71,
-48,
46,
-104,
51,
3,
-24,
118,
-90,
-122,
-12,
79,
57,
40,
-26,
98,
33,
85,
-49,
-84,
-115,
46,
119,
-99,
-89,
-112,
72,
75,
44,
-74,
-99,
125,
69,
7,
126,
-1,
-108,
22,
108,
3,
-54,
-10,
-93,
-113,
62,
-102,
71,
-17,
-89,
48,
113,
-114,
-16,
93,
71,
24,
27,
-33,
-3
] |
The opinion of the court was delivered by
Milton, J.:
This action was brought by the plaintiff in error against the defendant in error, as sheriff of Greenwood county, to enjoin proceedings under a tax-warrant for the collection of a tax on certain cattle which were purchased by the plaintiff and brought into Greenwood county from the state of Texas in the month of May, 1899. The property was assessed under the provisions of chapter 248, Laws of 1899 (Gen. Stat. 1899, §§ 7185-7187), entitled “An act providing for the assessment and taxation of property in certain cases.” Sections 1, 2 and 3 of the act read:
“Section 1. When any personal property shall be located in any county in this state after the 1st day of March of any year which shall acquire an actual situs therein before the 1st day of September, such property is taxable therein for that year and shall be assessed and placed on the tax-roll, and the tax collected as provided by this act.
“Sec. 2. Whenever any live stock shall be located in this state for the purpose of grazing it shall be deemed to have acquired an actual situs therein as contemplated by this act.
“Sec. 3. When any person, association or corporation shall settle or organize in any county in this state, and bring personal property therein after the 1st day of March and prior to the 1st day of September in any year, it shall be the duty of the assessors to list and return such property for taxation that year, unless the owner thereof shall show to the assessors, under oath, that the same property has been listed for taxation for that year in some other county in this state. If such property is brought within any county after the assessor has made his returns for that year to the county clerk, the assessor shall at once assess such property and return the same to the county clerk, and the same shall be entered by the county clerk on the tax books and collected as in other cases. The persons so assessed shall have the right, if assessed after the first Monday in June, to appear before the county clerk at any time before the taxes become due, and the county clerk shall equalize such persons’ taxes, as provided by law in section 93, article 7,. chapter 158, of the General Statutes of Kansas.”
The remaining provisions of the act relate to the collection of taxes levied under the preceding section. The defendant filed a general demurrer to the petition, and the demurrer was sustained and a judgment for costs entered against the plaintiff. The petition alleged that the plaintiff was at the commencement of the action, and for several years theretofore had been, an actual resident of Eureka township, in Greenwood county, and engaged in farming and in feeding and selling live stock; that he listed for assessment and taxation with the assessor of the said township all the personal property owned by him on March 1, 1899, and subsequently paid all the taxes based on such assessment ; that after such assessment was made plaintiff borrowed money by pledging as security therefor certain cattle which had been so listed by him for taxation, and with the money thus borrowed, in May, 1899, bought and shipped into Greenwood county from the state of Texas 350 head of cattle ; that such cattle were thereafter assessed by the assessor of the said township at the value of $1700 and the assessment returned to the county clerk, and that the tax, the collection of which the plaintiff seeks to enjoin, was based upon the assessment so made and returned.
It is contended by the plaintiff in error that chapter 248, supra, if section 1 thereof be given full force and effect, is in conflict with the provisions of the constitution of this state and with the constitution of the United States. It is further contended that section 1, to be upheld, must be construed as operating only in the manner and under the conditions stated in section 3. In considering the questions arising in the present case, it has been found that chapter 248 is, except in some unimportant particulars, copied verbatim from article 5 of chapter 43, Laws of Oklahoma, 1895, and that the last-named act has received consideration by the supreme court of Oklahoma in three cases, namely: Perry Cattle Co. v. Williamson, 5 Okla. 488, 49 Pac. 937; Wilson v. Wiggins, 7 id. 522, 54 Pac. 717; Collins v. Creen, 10 id. —, 62 Pac. 813. In these cases the property taxed was cattle. In the first-named case it was held that where the proof showed that cattle owned in another state or territory actually ranged and grazed in a certain county in Oklahoma during the entire year, such cattle had a situs for the purpose of taxation in that county. In the case of Wilson v. Wiggins the plaintiff resided in Kansas, and brought cattle from Texas into Woodward county, Oklahoma, for grazing purposes, after the 1st of March. On the 1st day of August the cattle were listed for taxation by the assessor of the township where the same were located, and the tax sought to be enjoined was levied on the basis of such assessment. The court construed the act there in question so that the provisions of section 3, exempting property under the circumstances and in the manner stated therein from taxation, should apply “ equally to all the classes of property subjected to taxation by the various sections of the act, regardless of whether the owner is a person settled in, or an association or corporation organized in, the county where said property is sought to be taxed.” It was also held that the property made subject to taxation by the provisions of section 1 shall be listed, assessed and placed on the tax-roll in accordance with the provisions of section 3. In the case of Collins v. Green, supra, the court held that the first two sections of the said act are plain, and mean precisely what the language imports, and are not susceptible of any other construction ; and that section 1 fixes the general rule for the taxation of all property brought into the territory between the dates named therein, while the first sentence of section 3 makes an exception to such general rule. The construction given in the case of Wilson v. Wiggins, supra, to the first three sections of the act was expressly dis-affirmed, and it was held that the legislature intended to say “that if any person, association or corporation shall settle in any county in the territory and bring personal property herein after the 1st day of March and prior to the 1st day of September, such property shall not be taxed if the owner thereof will show to the assessor, under oath, that the same property has been listed for taxation for the same year in some other state, or county in this territory.”
The court further said :
“It is sufficient in this case to say that section 1 of the transient-property act is general, and includes within its provisions all of the property brought into the territory, whether by resident or non-resident, while the first sentence of section 3 of that article is an exception to the general rule provided in section 1, and if the general rule and the exception cannot stand together the exception must fall, leaving the general statute in full force and effect.”
We concur in the foregoing views so far as the same are applicable to the present case. The plaintiff herein does not come within the exception of section 3. It is not necessary to hold that the act is invalid because it discriminates in favor of the per sons named in section B, since, if the general rule for taxation established by section 1 and the exception thereto as stated in section 3 cannot both stand, the exception falls. If the legislature intended that all persons whose property may be assessed for taxation under the provisions of section 1 may obtain exemption by making the proof required under section 3, it would doubtless have so declared, and not have employed language which cannot by any reasonable construction be given such effect. It must be held, therefore, that the legislature intended to establish a new rule governing the taxation of personal property, so that when such property shall be located in any county in this state after the 1st day of March, and shall acquire an actual situs therein before the 1st day of September, it is taxable therein for that year. It specifically declares that if live stock is located in this state for the purpose of grazing it shall be deemed to have acquired an actual situs therein. All the sections of the act, excepting sections 2 and 3, appear to be general in their nature.
The present act does not attempt to repeal directly any other laws concerning taxation, and we discover no necessary conflict between this act and such other laws. The objection that it is unequal in its operation, for the reason that under the provisions of sections 4, 6 and 8 the tax of a person assessed hereunder might become due and payable at once, and before the tax-on property assessed as of March 1 becomes due, does not appear to be well founded, for the reason already stated, that the provisions of the present act are, with the exception noted, general in their nature, and, so far as they provide new methods and proceedings for the collection of certain taxes, must be held as supplementing the existing laws. We are not pre pared to say that a clear case of unconstitutional double taxation is presented by the facts in the plaintiff’s petition.
It cannot escape notice that the act in question is defectively constructed, especially in section 3, but it has not sufficiently appeared that it is unconstitutional or invalid to warrant a reversal of the judgment of the trial court.
Since the foregoing was written, we have read the per curiam decision of the supreme court in the case of Conklin v. Hutchinson, 62 Kan. 867, 62 Pac. 1012, which was an action to enjoin the assessment, levy and collection of taxes on the plaintiff’s real estate, amounting to less than $100. It was held that the supreme court could not take jurisdiction of the cause on proceedings in error, the amount involved being insufficient, although the journal entry of judgment contained a statement 1 ‘ that the constitution of the state of Kansas is involved.” The court also declared that, since it appeared from the record that the amount involved was less than $100, the court of appeals could not take jurisdiction. The petition in error was accordingly dismissed. Following that decision, the present proceedings should be dismissed ; but to avoid a possible misconstruction of the decision, we shall, for the reasons already stated, affirm the judgment of the trial court.
|
[
-10,
102,
-44,
29,
40,
-32,
34,
-120,
65,
-95,
36,
83,
105,
-54,
20,
105,
99,
45,
69,
104,
-58,
-73,
3,
1,
-112,
-77,
-47,
-33,
51,
77,
-26,
-58,
78,
49,
-54,
21,
-60,
98,
-123,
-36,
-50,
10,
-119,
-60,
-15,
0,
60,
41,
50,
74,
49,
15,
-21,
44,
124,
99,
105,
44,
-39,
-82,
81,
-80,
-70,
29,
126,
19,
3,
70,
-62,
-123,
-24,
-82,
-104,
57,
64,
-24,
-5,
54,
-122,
84,
13,
-39,
41,
110,
103,
113,
29,
-17,
40,
-116,
14,
127,
-115,
-89,
-108,
88,
-37,
44,
-106,
29,
125,
-48,
6,
-2,
-29,
-124,
29,
108,
-123,
-37,
-106,
-77,
13,
124,
-128,
91,
-57,
-89,
48,
113,
-58,
-30,
92,
71,
50,
19,
-98,
-16
] |
The opinion of the court was delivered by
McElroy, J.:
Zimmerman is the owner of the northeast quarter, and Ginther is the owner-of the northwest quarter, of section 30, in township 12, of range 15 west of the sixth principal meridian, in Russell county. At the instance of Zimmerman, one Russell, as county surveyor, made a survey and subdivision of said section on .the 25th day of April, 1899. This survey placed the half-section line between Ginther and Zimmerman west of the line claimed by Ginther, and took from him a strip along the east line, as he contends. Ginther appealed from the Russell survey to the district court, and the court sustained his contention and set aside the survey. Thereupon, Zimmerman, as plaintiff in error, presents the record to this court for review, and alleges error in the proceed-' ing of the trial court.
The record in this case shows that one Bailey, as county surveyor, in February, 1880, reestablished the lines and corners to the quarter-section and subdivisions of this section. This survey was accepted by the owners and occupants of the north half of the section, and from that date they recognized the Bailey survey, the corners and lines as established by him, as the true lines and the legal subdivisions of the section, entered into possession of their lands accordingly, and no question was ever made concerning the same until more than fifteen years from that date. Ginther held possession of the northwest quarter of the section as established, under a claim of ownership, and cultivated, harvested, and built his fences accordingly ; he held the undisputed possession under claim of ownership for more than fifteen years prior to the time of the Russell survey.
It is contended that the Bailey survey was incorrect ; that the same did not locate the true line between the northwest quarter and the northeast quarter of such section ; and that in consequence of such mistake Ginther held possession of a strip which in reality belonged to the northeast quarter of the section. The trial court found that Ginther and all the parties concerned recognized the Bailey survey for more than fifteen years ; that during all that time Ginther held absolute, exclusive, notorious, open and adverse possession of -such strip, and therefore was the owner.
Counsel for plaintiffs in error do not question the findings of fact, but contend that the conclusions of law are erroneous ; that the possession of Ginther was not adverse. The defendant in error contends that the Bailey survey was made for the purpose of establishing the boundary lines, the subdivision lines and corners, that the same was accepted by all the parties interested, and that such survey became final; and that, in accordance therewith, Ginther took possession up to the line so found, under claim of ownership, and that all parties had knowledge of such possession. It is further contended that this was adverse, open, notorious possession, and that all parties interested acquiesced in this survey and in the lines and corners established thereby for more than fifteen years ; and that therefore Zimmerman is estopped from questioning the Bailey survey. Now it appears that immediately after the survey by Bailey, Ginther took possession of the northwest quarter of the section up to the east boundary line as found and established by. the survey, and that he, under claim of ownership, fenced, occupied and cultivated the same up to the line established. It thus appears that his possession was held for more than fifteen years prior to the survey made by Russell, and that his possession during all of that time was continuous, notorious, open, adverse, exclusive, uninterrupted, and visible, under a claim of ownership. The statute of limitations, as construed by our supreme court, is a statute of repose, and is looked upon with favor. We are of the opinion that all parties are bound by the Bailey survey. The plaintiff in error calls our attention to several authorities in support of his contention, all of which he claims have been approved by the supreme court in the case of Winn v. Abeles, 35 Kan. 85, 10 Pac. 443.
From an examination of this case, however, we are constrained to the opinion that the authorities are against him.
In Winn v. Abeles, supra, the court says :
“Possession alone is not sufficient to confer title. The holding must be hostile and adverse as against the true owner. There must, in addition to actual possession, be an intention of the party in possession to claim the land as his own. The occupancy of Abeles was not taken under color or claim of title ; nor was there any purpose to oust or dispossess Oolyer. The undisputed facts show that Abeles had no knowledge that his building extended beyond the boundary line of his lot until about the time that this controversy arose. He supposed his building rested entirely upon lot 9, and made no claim to any portion of the adjoining lot, and he is here now asserting that he does not own or claim the narrow strip of lot 10 upon which his wall had inadvertently been placed. Colyer was equally ignorant that the building of Abeles extended beyond the dividing line of the lots. No survey had been made, and it does not appear that there was any agreement that the line to which the wall extended should be taken as the true line. It will thus be seen that there was no adverse possession. One of the essential requisites to obtaining title through the statute of limitations was wanting, viz., the intention of Abeles to claim that land exclusively and as his own. Mere occupation by inadvertence or mistake, without any intention to claim title, may not be a disseizin, as where a fence is erroneously erected not on the dividing line.”
In the case at bar there had been a survey. The parties took open, adverse, notorious and exclusive possession of their lands according to the survey. They occupied the premises as owners. The possession was sufficient to start and uphold the statute of limitations. Judgment must be affirmed.
SOUTHERN DEPARTMENT. PRESENT: Hon. Hon. Hon. A. W. DENNISON, Presiding Judge. M. SCHOONOVER, } Associate Judges.
|
[
-12,
-18,
-36,
-65,
-70,
-32,
56,
-102,
67,
-95,
-90,
115,
45,
-38,
-121,
121,
-93,
121,
81,
42,
-26,
-73,
18,
-29,
-110,
-13,
-61,
-51,
-79,
93,
-26,
-58,
12,
32,
-118,
93,
70,
-94,
-51,
-34,
-114,
-106,
-87,
79,
-37,
64,
60,
111,
82,
-54,
53,
-113,
-77,
44,
29,
-61,
40,
46,
-119,
45,
1,
-8,
-66,
-115,
109,
22,
1,
3,
-38,
-121,
-54,
58,
-112,
52,
-64,
-23,
115,
-74,
-42,
117,
15,
-71,
9,
100,
103,
41,
-35,
-49,
-24,
-104,
14,
122,
13,
-89,
-76,
72,
-125,
0,
-66,
-99,
116,
112,
15,
126,
-28,
5,
24,
124,
33,
-117,
-106,
-127,
-113,
124,
-118,
7,
-53,
-125,
50,
112,
-49,
-70,
108,
70,
48,
27,
-97,
-104
] |
The opinion of the court was delivered by
Wells, J.:
On the 25th of January, 1887, the Capital Investment Company was incorporated under the laws of Kansas for the purpose of “the purchase, location and laying out of town sites, and the sale and conveyance of the same in lots and subdivisions, or otherwise; and the accumulation and loan of funds, the erection of buildings, and the purchase and sale of real estate for the benefit of its members.” The defendants in error, Edson & Beck, subscribed for five shares of the capital stock, of the par value of $100 per share, and paid three assessments thereon, amounting to $325, leaving unpaid $175 upon their original subscription. On July 17, 1897, the plaintiff in error herein recovered a judgment against said corporation for |10,521 and interest. An execution was issued on said judgment and returned nulla bona. Afterward, on September 4, 1897, an action was begun by plaintiff in error against the defendants'in error to recover the amount of their liability as stockholders to apply on said judgment. A trial was had to a jury, resulting in a verdict and judgment for the defendants. The plaintiff brings the cause here upon a petition in error.
The first question is: When did the plaintiff’s cause of action accrue? Or, to be more specific, when did the corporation suspend its business? It appears from the evidence and the findings of fact that the corporation ceased to carry on the usual and ordinary business for which it was created on or immediately after June 8, 1891; but on September 19, 1894, the president and secretary, under and by the authority of the directors, executed and delivered a deed to D. A. Valentine for a piece of land in which it had some equity, in which it recited that the corporation was at that time doing business in the state of Kansas. It is contended by the plaintiff in error that, as selling land was one of the purposes for which the corporation was formed, it was doing business on September 19, 1894, and that the action did not accrue until after that time. It is also contended that, as the deed of that date contained a recital that the corporation was at that time doing business in Kansas, it and its stockholders are estopped from claiming that it had previously suspended, and also that as the defendants had afterward pretended to sell their stock and cause it to be canceled on the books and a new certificate issued in lieu thereof, they could not now deny its corporate existence and business.
We do not think either of these contentions is sound. A single corporate act, or an occasional corporate act, does not constitute the carrying on of a corporate business any more than an occasional hiring of a horse to another constitutes one a livery-stable keeper. And more truly a series of acts done in winding up a business cannot be held to be the carrying on of a business. Neither does the recital or recognition of the corporation estop one from asserting that it had so suspended business as to entitle a creditor under the statute to proceed against the individual liability of the stockholder. The object of the statute was to enable a creditor to reach the stockholder before the corporation was legally dissolved, and section 45 of the corporation act (Gen. Stat. 1897, ch. 66; Gen. Stat. 1899, § 1268) does not change the law as to when a corporation is dissolved, except in the proceedings of creditors against stockholders.
The next contention is that the unpaid subscription, amounting in this case to $175, is a contractual liability and not barred by four years’ suspension of business-. It is not necessary to discuss what the rights of the plaintiff would have been if he had instituted proceedings to hold the defendants as debtors of the corporation for the amount of their unpaid subscription. He has elected to proceed againt them upon their statutory liability. He made no distinction as to how that liability was created and the law makes none. The statutory liability of a stockholder was the amount due on his stock and an additional amount equal to the stock owned by him. The law that governs in the collection of one does the same as to the other.
As to the question of dividends unlawfully received by the defendants, there is nothing in the pleadings that would have justified an examination of that subject.
We find no error in the record. The judgment .of the district court will be affirmed.
|
[
-16,
110,
-7,
-18,
26,
-24,
42,
-118,
69,
-96,
-91,
115,
-119,
-38,
20,
125,
-58,
45,
-48,
122,
-43,
-77,
7,
-85,
-42,
-109,
81,
-51,
-75,
77,
-10,
-43,
76,
48,
-54,
21,
-58,
66,
65,
-100,
-50,
4,
10,
-20,
-39,
64,
52,
59,
51,
75,
113,
-120,
-77,
34,
21,
-37,
41,
44,
-18,
-84,
-47,
-16,
-86,
-59,
127,
23,
49,
6,
-100,
7,
-56,
-66,
-104,
-12,
41,
-24,
90,
-94,
-58,
-12,
45,
-119,
44,
46,
99,
35,
1,
-19,
-6,
-100,
46,
-9,
-115,
-89,
-106,
80,
43,
41,
-66,
-99,
93,
6,
-125,
124,
-18,
-115,
29,
124,
3,
-101,
-10,
-45,
-113,
126,
-103,
-111,
-9,
-121,
-80,
96,
-58,
-28,
95,
71,
122,
19,
-113,
-48
] |
The opinion of the court was delivered by
Milton, J. :
This action was brought by Samuel Blinn, as administrator of the estate of his deceased wife, Annette D. Blinn, who was killed at a highway crossing on the line of the St. Louis & San Francisco railroad, near the village of New Albany, Wilson county, on January 27, 1897. She was walking alone towards the north on the public highway which extended north from a point near her residence, and was struck by a passenger engine attached to a train of cars and operated by the defendant company, at about two o’clock p. m. on the day named. The petition asked for damages in the sum of $10,000, and alleged that the action was brought for the benefit of the five children of the deceased. The jury returned a verdict in favor .of the plaintiff below in the sum of $1000, and judgment was entered accordingly. The allegation of the amended petition charging negligence of the defendant is as follows :
“ Th at as th e dece ased, Annette D. Blinn, had re ached the crossing aforesaid and was in the act of crossing said railroad, the defendant carelessly and negligently caused one of its locomotives with a train of passenger-coaches and other cars attached thereto to approach said crossing from the east and then and there pass rapidly over said railroad, and negligently and carelessly omitted its duty while approaching said crossing to give signals of the approach of said train by ringing a bell or sounding a whistle ; that in consequence thereof the locomotive and cars struck her, the said Annette D. Blinn, with great violence and threw her out and upon the ground with such force as to cause the death of her, the said Annette D. Blinn, immediately, or in a very short space of time, not to exceed-five minutes.”
The petition also alleged a large amount of evidentiary matter, part of which was to the effect that a hedge fence was growing and standing on the east side of the highway over which the deceased was traveling toward the crossing, and that such fence extended to within a few feet of the railroad-track. It was further alleged that the train which struck and killed the deceased was running at a rate of about sixty miles an hour. The plaintiff moved to strike out these allegations of evidentiary matter, but the motion was overruled. The answer contained a general denial and a plea of contributory negligence. The evidence as to the alleged negligence of the defendant in failing to sound the whistle when approaching the crossing where Mrs. Blinn was killed was very conflicting. Evidence concerning the dangerous character of the crossing for one approaching from the south, on account of the fences, and the grass and weeds on the right of way east of the fence, was received without objection by the defendant. The court gave, among others, the following instruction :
“7., With reference to the alleged hedge fence on defendant’s right of way, you are instructed as follows : If you should believe from the evidence that the defendant unnecessarily and negligently permitted a hedge fence to remain standing on its right of way, that said fence was of such height and in such condition that it obstructed the view of the deceased of the train which was approaching, and that such alleged hedge fence was one of the contributing causes which resulted in the death of the deceased, then and under those circumstances, if the deceased was free herself from ordinary negligence contributing directly to her own death, the defendant would be liable in this action.”
Without discussing all the questions raised by counsel, we shall briefly consider two which in our opinion require reversal of the judgment:
1. The court instructed the jury that if the defendant unnecessarily and negligently permitted a hedge fence to remain standing on its right of way in such condition as to obstruct Mrs. Blinn’s view of the approaching train, and that if the jury should believe the hedge fence was one of the causes contributing to her injury, then the defendant would be liable, provided they also found that the deceased was free from ordinary negligence contributing to her own death. The petition did not allege that the hedge fence was on the right of way, nor that the company was in any way negligent in respect to the fence. There is only one ground of negligence pleaded; that is the defendant’s failure to sound the whistle or ring the bell before reaching the crossing. The instruction was clearly erroneous, since under its guidance the jury were permitted to find for the plaintiff on account of negligence not alleged in the petition. This view is sustained in principle by the following'decision:
“In an action against a railway company by one of its employees to recover damages for injuries occasioned by negligence of the defendant or its servants, the negligence proven at the trial and found by the jury as a basis of a general verdict in favor of the plaintiff must correspond with the averments of the petition.” (Railway Co. v. Griffith, 54 Kan. 428, 38 Pac. 478.)
In the opinion in that case the court said that “the allegation of negligence in one particular does not warrant a recovery on proof of negligence in another and different matter.” To the'same effect is the decision in the case of Railroad Co. v. Owens, 6 Kan. App. 515, 50 Pac. 962.
2. It is contended that the damages awarded are excessive and that the evidence entitled the plaintiff to nominal damages only. The record shows that the deceased was the mother of five children, who survived her; that she was fifty-nine years of age, in good health and possessed of superior intelligence ; that she was active and vigorous, and was walking from her home to visit a sick woman in New Albany when death overtook her; and that one son, twenty-one years of age, was living at home. The petition shows that Mrs. Blinn’s daughter was married, but neither the petition nor the evidence indicates the age of any of the children, with the exception stated. Whether or not more than one lived at home cannot be learned from the record, nor does it show whether Mrs. Blinn contributed anywise to his support, nor that she performed any .work or earned anything. In the absence of evidence tending directly to show the pecuniary value of a life terminated by the negligent act of another, and in the absence of proven facts which might furnish the elements entering into a just estimate of the pecuniary value of the life so lost, a verdict in favor of the administrator of the estate of the deceased person for more than nominal damages cannot be sustained. (Railroad Co. v. Brown, Adm’r, 26 Kan. 443; Railway Co. v. Moffatt, 60 Kan. 113, 55 Pac. 837.)
Whether or not the demurrer to the evidence produced by the plaintiff should have been sustained for the reason that it tended to prove contributory negligence on the part of the deceased is a somewhat diffi cult question under recent decisions of the supreme court. We are inclined to the view that the cases of Railway Co. v. Williams, 56 Kan. 333, 43 Pac. 246, and Railway Co. v. Powers, 58 id. 544, 50 Pac. 452, authorize the overruling of the demurrer to the evidence. Other questions discussed by counsel do not require special mention.
The judgment of the district court is reversed and the cause remanded for a new trial.
|
[
-13,
108,
-16,
-82,
42,
98,
10,
-72,
113,
-111,
-96,
83,
-115,
-37,
17,
33,
115,
-67,
81,
43,
-10,
-77,
23,
-94,
-109,
-13,
-79,
-59,
-78,
88,
100,
-9,
77,
34,
10,
-99,
70,
75,
-59,
82,
-114,
52,
-55,
-23,
25,
-48,
48,
125,
86,
79,
49,
-34,
-29,
46,
28,
-32,
44,
111,
123,
-83,
-119,
48,
-94,
-107,
53,
18,
-126,
36,
-100,
5,
-38,
56,
-104,
21,
-128,
-24,
115,
-90,
-105,
-44,
97,
-39,
12,
-26,
103,
33,
21,
-19,
-32,
-104,
14,
62,
-115,
-89,
22,
17,
65,
100,
-97,
29,
117,
116,
7,
126,
-4,
86,
89,
-68,
-123,
-50,
-106,
-111,
-49,
118,
-108,
115,
-53,
43,
54,
113,
-55,
50,
95,
4,
56,
-101,
-33,
-106
] |
The opinion of the court was delivered by
Milton, J.:
In March, 1896, the defendants in error, T. W. Simpson, C. W. Linn, and J. W. Jennings, went from Agricola, Kan., to Montrose, Colo., to purchase cattle. They carried two letters of credit, one from the Bank of Waverly, Kansas, for $10,000, and one from the Bank of Williamsburg, Kansas, for $8000, entitling them to draw checks upon the said banks for the sums stated. On March 10 they purchased 144 head of steers, called “feeders,” for $4000, and went to the First National Bank of Montrose and drew a draft upon the Bank of Waverly for that sum. The cashier of the First National Bank, desiring before cashing the draft to be assured that it would be honored, wrote the following telegram, which was sent at the request and expense of Simpson, Linn & Jennings:
“Filed 9:03 a. M. 18. Paid 71 cts.
“Montrose, Colo., 3-10-1896.
“The Bank of Waverly, Waverly, Korn,.: Will you pay Simpson & Jennings check, four thousand dollars, on your credit letter, March 5. Wire quick.
First National Bank.”
This telegram was in fact received by the defendant company’s agent at Waverly but was never delivered. The cattle were delivered to Simpson, Linn & Jennings in the stock-yards of the Denver & Rio Grande Railroad Company at Montrose at about five o’clock p.m. on March 10, and were kept there until about eleven o’clock a. m. on March 12. The facilities for feeding in the stock-yards were inadequate and the water was very poor. On March 11 Simpson, Linn & Jennings purchased additional cattle, called “stockers,” to the number of 299, at a cost of about $9000, and the same were placed in said stockyards. Having received no response from the Bank of Waverly, and desiring to arrange for the payment of the entire purchase-price of all of the cattle, at about eleven o’clock in the forenoon ,of March 11 Simpson, Linn & Jennings wired the Bank of Waverly as follows :
“Pink. Filed 11:10 a. m. 23. Paid 89 cts. Sent 11:13 a. m.
“Montrose, Colo., 3-11-1896.
“The Bank of Waverly, Waverly, Kan.:
“Transfer to Midland. National Bank, Kansas City, by wire, ten thousand dollars. Wire credit First National Bank, Montrose. Do n’t pay check four thousand. Quick. Simpson, Linn & Jennings.”
A similar telegram with reference to the $3000 in the Bank of Williamsburg was sent to that bank at the time the foregoing message was sent, and at 3:30 o’clock p. m. on the same day the latter bank wired that the money had been transferred to the Midland National Bank as requested. No word having come from the Waverly bank, at 7 : 20 p. m. on the same day Simpson, Linn & Jennings wired the bank as follows:
“Montrose, Colo., 3-11-1896.
“The Bank of Waverly, Waverly, Kan.:
‘ ‘ Explain why we have no reply to our message; here on expense, account your delay. Wire credit quick. Simpson, Linn & Jennings.”
This dispatch contained the extra word-“deliver,” meaning a direction to the operator at Waverly to deliver it at once, and it was written on a day-message blank. The operator at Montrose also inserted the word “quick.” The last two telegrams sent to the. Bank of Waverly were delivered to it at nine o’clock a. m. on March 12. Promptly thereafter the bank sent two telegrams to Simpson, Linn & Jennings and one to the First National Bank of Montrose. The substance of these messages was that the Bank of Waverly could not transfer the funds to the Kansas City bank as requested, but would honor their checks for, $10,000. At the time these messages were received, one train had been loaded with cattle and sent forward, and the second train was being loaded, the ■trains and the engines therefor having been ordered for that purpose at about nine p. m. of the preceding day. The arrangement whereby the shipment of the cattle had become possible, notwithstanding the failure to hear from the Waverly bank, resulted from a purely casual meeting between one of the plaintiffs below and the cashier of the Montrose Bank, a competitor of the First National Bank, on the street, after banking hours on March 11, the cashier stating that, if the First National Bank would not advance money on the letters of credit, his bank would arrange matters so that the plaintiffs could ship the cattle the next day. Upon receiving this assurance the trains were ordered, and they were sent out from Gunnison that night, arriving at Montrose about daylight on the 12th.
The $3000 from the bank at Williamsburg was used in part payment for the cattle, and on the day of the shipment satisfactory arrangements were made between the sellers and the buyers so that the shipment was completed. Payment for the cattle was finally concluded through the First National Bank of Mont-rose four days later. It seems that the Bank of Waverly paid the $4000 draft which Simpson, Linn & Jennings had drawn on March 10, and thereafter transferred $6000 to the Midland Bank to the credit of the First National Bank of Montrose. The cattle arrived at their destination on March 14, and, two or three days later, they were weighed at that place. It was found that they had lost largely in weight on account of the condition of the cattle-pens at Montrose. Sufficient of the foregoing facts were alleged in the petition to state a cause of action against the telegraph company for damages. The.answer, besides a general denial, alleged substantially that the messages to the Bank of Waverly were transmitted to the defendant under the conditions printed on the back of each message, and denied any liability arising from its failure to deliver the messages, since none of them were “repeated” messages. The answer also averred that the instructions contained in the message sent by the plaintiffs below, requesting the transfer of the money to the hank at Kansas City, would not have been complied with or performed in any event; also, that the message given to its operator at Montrose at 7:30 p. m. on March 11 could not have been transmitted to Waverly, for the reason that the telegraph company did not maintain a night office at that place. The reply denied that the messages were sent subject to the conditions printed on the back thereof.
Prior to filing the answer, the defendant moved “to require the plaintiffs to state separately and number their causes of action set forth in their petition in the above-entitled case.” The motion was overruled, defendant excepting. Verdict and judgment were rendered in favor of the plaintiffs below.
Various errors are alleged, principally in respect to giving and refusing instructions. The first error assigned is that the court erred in overruling the motion to require the plaintiffs to state separately and number the causes of action set forth in their petition. Counsel urge that each message evidences a separate contract between the sender and the telegraph company, and that the court therefore erred in overruling the said motion. There is nothing in the motion itself to advise the trial court in respect to the proposition now contended for. While the code requires that separate causes of action shall be separately stated and numbered, and while the supreme court has held it error to overrule a motion directed against a petition which improperly fails to state separately and number the several causes of action it contains (Pierce v. Bicknell, 11 Kan. 262), yet we think the court did not err in the present case, for the reason that the motion did not point out wherein the plaintiffs’ petition stated more than one cause of action, and for the further reason that the answer attempted to set up a specific defense to each of the alleged causes of action. See the case of Ambrose v. Parrott, 28 Kan. 693, in which it was held not error to overrule a motion similar to that under consideration. It may be added also that the record does not show that any real defense was made by the telegraph company in the trial of the case. Indeed, it appears that the counsel for the defendant in his argument to the jury said : “It would be useless for me to argue to you that the evidence in this case does not show negligence against the company.”
Whether or not the admitted negligence of the defendant in failing to deliver the telegrams sent to the Bank of Waverly within a reasonable time after the same were transmitted from Montrose caused a delay in the shipment of the cattle, and a consequent shrinkage in their weight, was the only question presented to the jury. The instructions given fairly presented that question. We think the jury were warranted in finding that the negligence of the defendant resulted in damage to the plaintiffs. If the first telegram sent had been delivered promptly, the first cattle purchased would have been paid for and might have been shipped on the night of March 10 or early the next morning. A prompt and favorable response to the first message would have effectually established the financial standing of the plaintiffs below and would doubtless have enabled them to buy and ship the other cattle without a vexatious delay. The second telegram to the Bank of Waverly was not sent until twenty-six hours after the first one had been transmitted. In the meantime, Simpson, Linn & Jennings had contracted to buy additional cattle to the value of $9000. The lapse of time had doubtless caused the managing officials of the First National Bank of Montrose to desire a change of plan respecting the handling of the credit claimed by the plaintiffs. The persistent failure of the telegraph company to communicate the desire and request of the plaintiffs to the Bank of Waverly made it necessary to delay, and prevented the adoption by them of any other plan of operation. The cattle were actually shipped under an arrangement based apparently on the payment of ' the $3000 by the Bank of Williamsburg and faith in the plaintiffs and in the much-belated telegram from the Waverly bank that it would honor the plaintiffs’ checks for $10,000. It is true that the last-named telegram was not received until one train load of the cattle had started, but the facts in the record indicate that up to that time a bill of sale of the cattle was not given, and that it was actually given thereafter. We fail to see how the jurors could have avoided the conclusion that the negligence of the defendant company' was responsible for the delay in the shipment of the cattle and the consequent loss. It also seems clear that the facts in evidence fully warranted the verdict for the amount awarded by the jury. In this view, it is unnecessary to discuss all the propositions set forth by counsel. No question concerning the admission of testimony can be considered, since no error in this respect is alleged. The instructions given having fully covered the issue arising upon the facts, it cannot be held that the refusal to give the requested instructions was error. The judgment of the district court is affirmed.
|
[
-80,
108,
-80,
-97,
42,
-32,
42,
-102,
3,
-87,
-74,
115,
-55,
-58,
20,
121,
-30,
29,
-44,
104,
118,
-74,
15,
-31,
-46,
-13,
-47,
-51,
-79,
89,
-92,
-35,
77,
16,
-118,
-99,
-26,
-32,
65,
-108,
-114,
5,
41,
-19,
-35,
0,
52,
107,
22,
66,
49,
-114,
-13,
38,
28,
-14,
41,
60,
107,
45,
-128,
-16,
-86,
-49,
111,
6,
18,
98,
-118,
7,
-40,
46,
-104,
49,
65,
-24,
122,
-92,
-122,
84,
77,
-119,
12,
38,
102,
32,
-43,
-17,
72,
-120,
47,
-33,
-115,
-89,
-112,
64,
-125,
37,
-66,
-99,
102,
22,
6,
-4,
-21,
-116,
29,
40,
3,
-117,
-74,
-126,
-97,
60,
-104,
91,
-37,
-89,
50,
113,
-51,
-30,
93,
71,
126,
27,
-98,
-74
] |
Dennison, P. J.
This action was commenced in the Court of Common Pleas of Sedgwick County, Kansas, by the First National Bank of- Newton, Kansas, to recover a judgment against F. L. Briggs and G-. S. Miller upon a promissory note executed by them and belonging to said Bank. Judgment was rendered against the defendants in the sum of $361.30, together with interest and costs. After the judgment was rendered, the plaintiff, by its attorney, applied to Hon. Jacob M. Balderston, the judge of said court, for an order allowing an execution upon said judgment against . the person of the defendant F. L. Briggs. The application for such order recited
“First, that said F. L. Briggs has property which she fraudulently conceals with the intent to prevent the collection of money due on the judgment; second, that she has assigned or disposed of all or a part of her property with the intent to defraud her creditors including said plaintiff, said judgment creditor ; third, that she fraudulently, contracted the debt upon which the judgment was rendered.”
The application for an execution upon these three distinct and separate grounds was supported by the affidavit of the plaintiff’s attorney and by other evidence. The affidavit of plaintiff’s attorney, filed in support of the application, alleges :
“First, that said defendant F. L. Briggs has property which she fraudulently conceals with the intent to prevent the collection of money due on said judgment; second, that said defendant F. L. Briggs has assigned or disposed of all or part of her property with intent to defraud her creditors including said plaintiff, said judgment creditor.”
, Upon the showing made, the application was granted, and the order of arrest was issued and delivered to the sheriff, who took the defendant F. L. Briggs into custody and confined her in the county jail of Sedgwick County by virtue of such order. Thereafter, Miss Briggs filed a motion asking that the order of arrest be vacated, set aside and held for naught.
■ Upon the hearing thereof, the motion was sustained and the order of arrest set aside. The plaintiff saved proper exceptions and brings the case here, asking us to reverse the order of the said judge in sustaining the said motion 'and in setting aside the order of- arrest.
The plaintiff presents in its brief and argues -four specifications of error, which are as follows :
“1. That the court erred in overruling th,e objection of the plaintiff in error, made on April 11, 1891, at ten o’clock a. m., to -the hearing, at that time and place, of the motion of the said defendant F. L. Briggs to vacate the order of execution and arrest against her person in said action ; which objection was based upon the ground that no sufficient notice of said motion had. been given to or served upon the said plaintiff in error by the said defendant F. L. Briggs, and that the notice of said motion which was served upon said plaintiff in error by said defendant did not state the place where said motion would be heard.
“2. That the court erred in overruling the objection of the plaintiff in error to the hearing of the motion of the said defendant F. L. Briggs to vacate the order of execution and arrest against her person in said action, and to the introduction of any evidence in support thereof; which said objection was based upon the ground that said motion did not state facts sufficient to entitle said defendant to the relief sought for by said motion or to any other relief.
“3. That the court below, having found as a fact, from the evidence introduced upon the hearing of the motion of said defendant F. L. Briggs to vacate the order of execution and arrest against her person in said action, and at the time the order was made by the judge of said court allowing said execution, that the said defendant had assigned or disposed of all or part of her property with intent to defraud her creditors including said plaintiff, said judgment creditor, and haying found as a matter of law that such fact would be sufficient in law to support an attachment against her property, erred in holding that such fact was not sufficient in law to support or authorize an execution against her person.
“4. That the court erred in making the order sustaining the motion of said defendant F. L. Briggs to vacate the order of execution and arrest against her person in said action, and vacating and setting aside the order made by the judge of said-court on April 7, 1891, allowing the said execution against her person upon the judgment in said cause.”-
The first error complained of cannot be maintained by the plaintiff in error, for the reason that the general appearance of the plaintiff at the hearing of the motion cured any defects - in the notice by which the court obtained jurisdiction to hear and determine such motion.
In support of the second specification of error, the plaintiff argues that the motion, which challenged the truth of the grounds stated in the affidavit, did not put in issue the third ground stated in _ , the application, because said third ground was not included in said affidavit. This is not tenable, for the judge in allowing the execution could only consider such grounds as were stated in the affidavit required by section 507 of the Code. It is also contended in support of the second specification of error that as the motion to vacate was in the present tense, and as the affidavit was made upon the seventh day of the month, the execution served upon the eighth day, and the motion filed upon the ninth, the grounds set out in the affidavit might have been true upon the seventh though not true upon the ninth. The substantial rights of the plaintiff were not prejudiced by this seeming discrepancy between the affidavit and the motion, as the evidence developed the fact that whatever was done by the defendant on or before the seventh day of the month, was also in existence upon the ninth.
It is also contended that, the judge having passed upon the truth of the grounds of the affidavit when the order was first made, the question is res adjudicata, and cannot again be inquired into upon a motion to vacate the order of execution and arrest against Miss-Briggs's person. A court or judge who allows an execution against the person of a judgment debtor has the power to hear and decide a motion to vacate the order of arrest; and if he is satisfied that a preponderance of the evidence is in favor of the defendant, he should vacate the order.
The third specification of error is based upon the following statement contained in the case_made attached to the petition in error filed herein :
“Thereupon the said court, in announcing its decision upon said motion, by said Jacob M. Balderston, judge of said court, stated that it believed from the evidence above set forth, that at the time said order was made by said judge allowing said execution against the person of said defendant F. L. Briggs, as aforesaid, the said defendant F. L. Briggs had assigned or disposed of all or a part of her property with intent to defraud her creditors including said plaintiff, said j udgment creditor ; and that such fact would be sufficient in law to support an attachment against the property of said defendant F. L. Briggs, but that such fact was not sufficient in law to support or authorize an execution against her person ; and that, if debtors could be arrested and imprisoned on execution against the person on such ground, the county jails of this State would not be large enough to accommodate such debtors.”
This is no part of the journal entry of judgment, nor does it purport to be a finding of fact made by the court. On the contrary, it purports to be the reason given by the court for the ruling it made. The court in this case was not required to give a reason, and the rights of the defendant were not jeopardized because it gave an incorrect one.
The fourth assignment of error is, that the court erred in sustaining the motion to vacate the order of arrest. This assignment is based upon the points already decided in this ' opinion and also upon the contention that the preponderance of the evidence establishes the .truth of the affidavit. Oral and other evidence was introduced upon - the hearing of the motion, and we see no sufficient reason for reversing the ruling of the court thereon.
The judgment of the trial court is affirmed.
|
[
-14,
-20,
-23,
28,
26,
-32,
48,
-86,
83,
-77,
-75,
115,
-23,
-52,
5,
43,
116,
-7,
117,
121,
-29,
-77,
7,
97,
-42,
-78,
-63,
-35,
-77,
79,
-12,
-59,
9,
48,
-62,
29,
-58,
-128,
-63,
-36,
-116,
1,
-120,
-32,
-39,
72,
48,
123,
86,
8,
113,
46,
51,
43,
21,
74,
105,
44,
-21,
45,
-56,
-15,
-21,
-123,
111,
22,
-127,
-121,
-108,
3,
74,
47,
-112,
57,
0,
-24,
123,
-74,
2,
116,
75,
27,
-83,
102,
98,
35,
20,
-17,
-76,
-8,
46,
126,
-99,
-89,
-48,
72,
67,
44,
-66,
-99,
116,
-108,
7,
-4,
120,
-124,
25,
108,
15,
-49,
-44,
-111,
-115,
48,
-118,
-73,
-25,
19,
50,
113,
-97,
-30,
92,
55,
48,
59,
-82,
-1
] |
Mahan, P. J.
The plaintiff brought an action against the defendant upon an undertaking to stay execution upon a judgment of a justice of the peace. The judgment in the case was upon three promissory notes aggregating the sum of $326, for which amount the plaintiff obtained judgment against one A. L. Barnes.
Under the authority of Ball v. Biggam (43 Kan. 327), the judgment was void for want of jurisdiction of the justice to render the same. The judgment being absolutely void, there could be no lawful stay of execution, and hence the undertaking was likewise void. It was an undertaking that the justice had no authority to take.
Counsel for plaintiff in error contend, however, that notwithstanding the undertaking is not good, as a statutory undertaking, yet it might be held good as a common-law bond for the payment of the debt. This contention cannot be sustained. The action of the justice of the peace was, as we have heretofore said, void for all purposes. This position is sustained by the judgment of the Supreme Court of the United States in Pacific National Bank v. Mixter (124 U. S. 729).
In that case an attachment was issued out of the Circuit Court of the United States for the District of Massachusetts against the bank without any authority of law. For-the purpose of discharging the attachment, the bank gave a bond, as provided by the statute of that State in attachment proceedings. Counsel in that case contended that, while the bond was not good as a statutory bond, it could be held good as a common-law bond. But the Supreme Court said :
“Neither is the bond binding as a common-law bond. If the attachment had been valid, and the bond taken had not been in all respects such as the statute had required, it could nevertheless have been enforced as a common-law bond, because it was executed for a good consideration, and the object for which it was given had been accomplished. But here the difficulty is that there was no lawful attachment, and therefore no lawful authority for taking any bond whatever. The bond is consequently neither good under the statute nor at common law, because there is no sufficient foundation to support it.”
In this case it can be said there was no consideration whatever for the undertaking. There was no execution to stay. There was no judgment upon which execution could have been issued. The learned judge who tried the case below so ruled, and his ruling is without doubt correct.
Judgment affirmed.
|
[
-48,
120,
-47,
124,
10,
96,
10,
-102,
-15,
-94,
49,
83,
-71,
-29,
0,
49,
53,
121,
117,
104,
93,
-73,
39,
67,
-45,
-109,
-56,
-43,
49,
109,
-10,
-98,
12,
32,
74,
-43,
-58,
-118,
-47,
88,
-50,
61,
74,
-27,
-7,
-56,
52,
55,
16,
79,
97,
-44,
-29,
43,
20,
99,
109,
42,
74,
-91,
-32,
-8,
-99,
-123,
109,
20,
-109,
39,
-100,
7,
-40,
44,
-104,
49,
9,
-24,
122,
-106,
-122,
86,
111,
27,
-84,
98,
34,
-127,
100,
-23,
-112,
-40,
39,
-18,
-115,
-122,
-112,
88,
11,
9,
-106,
-99,
101,
4,
-122,
110,
-18,
5,
95,
108,
11,
-49,
-46,
-77,
-115,
126,
-42,
-95,
-17,
97,
0,
1,
-50,
-32,
92,
-29,
120,
91,
14,
-7
] |
Mahan, P. J.
The plaintiff in error sought to enjoin the collection of taxes for municipal purposes levied upon its property by the City of Kensington. A part of the land is platted into lots and blocks and was so platted at the time of the attempted incorporation of the City, and a part of it was used exclusively for agricultural purposes. The evidence shows that it is not in any manner needed for city purposes, nor benefited by such incorporation.
The first contention is that Kensington is not a city duly incorporated under the laws of the State. This contention is based upon the fact that the Board of County Commissioners, in the order attempting to incorporate Kensington as a city of the third class, wholly omitted to designate in the order the metes and bounds of the-City.
The statute conferring authority upon the Board of County Commissioners to authorize the incorporation of a town or village into a city of the third class, is paragraph 923 of the General Statutes of 1889. It provides, that a board of county commissioners may act whenever a petition, signed by a majority of the electors of any unincorporated* town or village within the State, shall be presented to it, setting forth the metes and bounds of the village and the commons thereto, and stating as nearly as they can the number of the inhabitants of their town or village, and praying that it may be incorporated. They must furnish proof that the petition has been published in some newspaper of the town or village at least once in each week for three consecutive weeks. It further provides that the board must be satisfied that a majority of the taxable inhabitants of the town or village are in favor of the incorporation; that the prayer is reasonable ; and that the number of inhabitants of such town or village exceeds two hundred and fifty persons and does not exceed two thousand. Being so satisfied, the board may, at any regular session, by its order, reciting the substance of the petition and the publication thereof, and its finding that a majority of the taxable inhabitants of the town or village are in favor of such incorporation, that the prayer is reasonable, and that the number of inhabitants is within the limits required by law, declare such village incorporated, by name, designating in such order the metes and bounds thereof. The statute provides thus: “And thenceforth the inhabitants within such bounds, and such further territory as may from time to time be lawfully added thereto, shall be a body politic and corporate by that name,” etc.
The Board of County Commissioners in this case did not recite the substance of the petition. It did find that the petition was legal and reasonable, was signed by a majority of the taxpayers, and had been published as required by the statute. It did order and declare it a city of the third class by the name of the City of Kensington. But it nowhere in its order designated the city's metes and bounds, nor did it find that the petition was signed by a majority of the electors, nor did it find that the village or town of Kensington was possessed of the requisite number of inhabitants.
It appears, however, that under this order the people of Kensington proceeded to organize their city corporation by the election of officers under the Act of the Legislature designating the rights and duties of a city of the third class, and have since that time maintained such organization, or corporate existence, and are a de facto corporation within the rule laid down by our Supreme Court. This being the case, the plaintiff cannot in this collateral proceeding attack the validity of the corporate existence. This implies the right to levy the tax upon the property within its boundaries when such boundaries are determined. 1 Dillon’s Municipal Corporations, § 43a, note 2; Cooley’s Constitutional Limitations, 309 ;Voss v. School District, 18 Kan. 467; Pape v. Capitol Bank, 20 id. 440; School District v. The State, 29 id. 57; Mendenhall v. Burton, 42 id. 570; Austrian v. Guy, 21 Fed Rep. 500.
So that in any event, as to the taxes levied upon the lots within the platted portion of the City of Kensington, there can be no question ; and the court was correct in its judgment that, so far as this property was concerned, the temporary injunction should be dissolved and the perpetual injunction denied,
As to the remaining property, which was, as we have said, used exclusively for agricultural purposes, was in no manner any part of the town of Kensington, was in no manner benefited by any of the privileges conferred by its incorporation or the maintenance of the city government, and was not embraced within the city limits by any express order of the Board of County Commissioners, there is a difficult question. Whether a municipal corporation has well-defined boundaries or not, and what these boundaries are, seem to be questions to be decided by the court. Little Rock v. Parish, County Clerk, 36 Ark. 166.
There being no designation of the metes and bounds of the City in the order authorizing the incorporation, what does the law imply as to the extent of its territorial jurisdiction? What did the town or village of Kensington comprise prior to the order made by the Board of County Commissioners? It cannot be said that it comprised any territory except such as was platted into lots or blocks, or such as was within its boundaries as a village. The property m question, under the evidence, cannot be said to have constituted any part of the village of Kensington; it had no inhabitants except two ’employees of the plaintiff in error who temporarily stayed in two sod houses upon a part of the land. These were separated from what constituted the village at that time. There has been no act of the plaintiff that could be said to recognize the land as within the corporate limits of the village or the City. Hence, we are forced to the conclusion that there was no evidence whatever offered upon which the court could find that the property was within the corporate limits of the City.
It follows that the judgment of the court, so far as the agricultural land is concerned, is not sustained by any evidence. It not being within the corporate power of the City to levy any tax upon lands outside of its city limits, the plaintiff was entitled to have its collection enjoined. It requires an affirmative act — an affirmative order — based upon the findings of the Board of County Commissioners, to embrace this land within the corporate limits of the City. No such order was made.
The question of the right to levy the tax, even considering the property within the designated metes and bounds of the City, was argued before the court. But in our view of the case it is not necesary to determine this question, which is a difficult one, and we do not determine it.
The judgment of the court below is erroneous as to this agricultural land, and, so far as the tax was attempted to be levied upon it, the judgment must be reversed and the case remanded to the court below for further proceedings not inconsistent with this opinion. The costs will be divided equally between the parties.
|
[
-26,
110,
-48,
-82,
123,
100,
42,
-90,
72,
-93,
-25,
127,
-17,
-38,
16,
41,
-25,
125,
-48,
122,
-57,
-77,
23,
67,
-70,
-109,
-27,
-35,
-79,
109,
-10,
117,
76,
-91,
74,
53,
70,
38,
5,
-36,
-122,
-92,
11,
72,
-39,
64,
52,
25,
34,
11,
113,
-49,
-13,
42,
52,
-29,
-88,
44,
89,
-75,
-45,
-8,
-66,
-51,
127,
6,
-80,
22,
-120,
-93,
-54,
14,
-120,
25,
-94,
-32,
63,
-90,
-126,
-10,
13,
-103,
9,
32,
66,
1,
13,
-17,
-80,
-99,
14,
-34,
29,
-91,
-107,
80,
123,
9,
-97,
31,
117,
20,
70,
122,
-20,
5,
94,
108,
-123,
-10,
-58,
-73,
-113,
-84,
-120,
17,
-17,
38,
16,
113,
-50,
-18,
95,
-29,
18,
27,
-100,
-47
] |
McElroy, J.
This action was brought in the court below by Delana Allbert, against the Board of County Commissioners of the County of Nemaha, to recover for personal injuries to herself and damages to her property on account of a defective bridge across the Nemaha River. The injuries complained of were sustained while she was driving across the bridge. Her horse.took fright and backed her buggy off the approach of the bridge at a place where there were no guard rails or railings. A trial was had before a jury, which resulted in a verdict for the plaintiff and judgment against the defendant. A motion for a new trial was filed, overruled, and the defendant, plaintiff in error, presents the case to this court for review.
I. Complaint is made that the court rejected legal, competent evidence. Witness George W. Myrick, chairman of the Board of County Commissioners, was asked : “ Q. Were you usually present when the question of repairs on bridges came up? A. No.— Q,. What is the usual practice of the Board in relation to that?” This latter question was objected to as incompetent, and the objection sustained. It is insisted that the answer to this question would have tended to show whether or not the witness, as chairman of the Board, had actual notice of the defects in th,e bridge; that the Board had established a rule that the matter of repairing bridges should be left to that commissioner in whose district such bridge was located, and that, as the bridge in question was not in the chairman’s district, the notice of the defective bridge was more likely given to the commissioner hi whose district the bridge was situated, This evidence was clearly incompetent. It did not in any manner tend to establish any fact relative to the question as to whether or not the chairman of the Board of County Commissioners had notice of the defective and dangerous condition of the bridge in question. The objection to the evidence was properly sustained.
II. It is complained that the court erred in refusing to give certain instructions asked by the defendant. The question of contributory negligence was a question ror the iury and not for the court. The instructions asked did not correctly state the law applicable to the case under consideration, and were properly refused.
III. It is urged that the court erred in instructing the jury : “ Nor is there any dispute of the fact that the bridge and approaches in question were built and paid for by the county.” Henry Crary testified that he was a resident of Nemaha County ; that he knew the bridge in question for several years ; that the span of the old bridge was fifty feet in length, and the approaches about fifty feet; that the bridge cost more than two hundred dollars; that in 1889 he was employed by the Board of County Commissioners to rebuild, and did rebuild, the bridge and its approaches ; that the county furnished the material and paid him for the work ; that at the time he rebuilt the bridge, he put up railings the full length of the thirty-six foot span, and half the distance on the approaches ; that the railing on the span of the bridge is in place; that at the time of the accident the railing on the approaches at the south end of the bridge had been down for at least two years. Henry Kemper testified that in 1892, by the order and direction of the Board of County Commissioners, he repaired the bridge. None of this testimony was contradicted. It seems, from an examination of the record in this case, that there was no dispute of the fact that jjj-pjgg an(} approaches in question were built and paid for by the county, and that such repairs as were made on the bridge were also made by the county. The instruction was properly given.
IY. It is contended that the Court erred in overruling the demurrer of the defendant below to the evidence of the plaintiff. This action was brought under section 7134, General Statutes of 1889, which reads :
“Any person who shall without contributing negligence on his part sustain damages by reason of any defective bridge, culvert, or highway, may recover such damages from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained ; and in other cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect.”
Herein complaint is made, first, that the evidence fails to show that the Board of County Commissioners of Nemaha County ever determined that the bridge in question should be built and repaired at the expense of the county. We find from an examination of the record that, prior to 1888, there was a bridge across the Nemaha River at the location of the bridge in question, and that this old bridge was torn down in 1889 and a new bridge constructed. The span of the new bridge was thirty-six instead of fifty feet. This bridge was constructed by Henry Crary, who was employed for that purpose and paid by the county of Nemaha. He constructed the bridge of material furnished by the county, extended the approaches to the bridge, and put up the railing. Afterward, in 1892, Henry . Kemper, under the direction of the County Commissioners, repaired the bridge to some extent.
Now it seems that this, that is, the building and repairing of the bridge, would of itself be a sufficient determination of the matter by the Board of County Commissioners. “ The county commissioners of each county shall determine what bridges shall be built and repaired at the expense of the county.” ¶ 501, Gen. Stat. 1889. It seems that the building and repairing of a bridge would show conclusively the determination of a board of county commissioners in that regard. In the case at bar, the defective bridge was constructed wholly by the county ; and we think it sufficiently appears that the County Commissioners had determined that this bridge should be built and repaired at the expense of the county, from the fact that such building and repairing was done at the request, and under the direction, of the Board of County Commissioners, at the expense of the county.
It is complained, second, that there was no evidence that George W. Myrick, chairman of the Board, had notice that the bridge was in a defective condition. The court instructed the jury :
“ If you believe from the evidence that George W. Myrick, the chairman of the Board of County Com missioners, had actual and personal notice of the defective and dangerous condition of the bridge and its approaches, for at least five days before the accident occurred, then your verdict should be for the plaintiff, for such damages to her person and property as the evidence shows she has sustained ; unless you further find from the evidence that, by her own negligence or want of ordinary, reasonable care and prudence, she contributed directly to the injuries complained of.”
The jury found that the chairman had "actual and personal notice of the defective and dangerous condition of the bridge and its approaches. The court submitted to the jury findings, which were answered by the jury, as follows :
“ l._ Did Geoge W. Myrick, chairman of the Board of County Commissioners of Nemaha County, Kansas, have actual notice of the defect in such bridge — if any such existed — for at least five days prior to the accident complained of ? Ans. Yes.
“2. If the last question is answered ‘ yes/ state by whom, when and where such notice was given him. A. H. Kemper. In May, June, or July, 1892, in county clerk’s office.”
Is there sufficient evidence of notice to sustain the findings of the jury? Henry Kemper testified that he was trustee of the township where the bridge was located; that some person reported to him that the bridge was in a dangerous condition; that he examined it and found some of the railing off, some trestle work rotted out, and that the bridge needed repairing; that he saw the Commissioners and told them the condition of the bridge ; that, authorized by the Commissioners, he did, to some extent, repair it, and directed the “ road boss ” to put guards on the approaches, but that such guards were not put up. There was some other testimony tending to show that the chairman had notice of the dangerous condi tion of the bridge. The testimony on this question was, however, conflicting. We think that the jury had sufficient evidence to warrant the finding that the chairman had notice.
. V. Lastly, it is said that the court erred in refusing to submit the case to the jury immediately after the opening argument by counsel for defendant in error. Prior to the argument of the case to the jury, the court announced- that the argument would be limited to forty-five minutes on each side. J. L. Breeding opened the argument on behalf of the plaintiff with a ten-minute speech only, and announced that he did not desire to make any further argument in the opening of the case. Frank Wells, attorney for the defendant, then waived argument on the part of the defendant and requested that the case be submitted to the jury without further argument. Thereupon B. M. Emery, an attorney for the plaintiff, was permitted to address the jury for thirty minutes, and the court refused the request of counsel for defendant to be allowed to answer. This, we think, was orror. The plaintiff’s attorneys had no to renew their argument after the defendant had waived his ; but if the court should, in its discretion, permit them to do so, it should have permitted the defendant to answer such argument. For the court to refuse the defendant’s request to answer such argument, was not only an abuse of discretion, but was the prejudicial denial to the defendant of a right. S. K. Rly. Co. v. Michaels, 49 Kan. 388.
The judgment will be reversed, and the cause remanded for a new trial.
Mahan, J. P., concurring.
Wells, J., having been of counsel, not sitting.
|
[
-16,
-20,
-27,
-51,
-21,
97,
56,
10,
65,
-125,
-11,
83,
-83,
-64,
9,
107,
-18,
127,
-11,
43,
66,
50,
83,
99,
-14,
-78,
-77,
71,
-69,
107,
-12,
-3,
76,
48,
-54,
-43,
70,
64,
-59,
92,
-50,
-113,
-117,
-19,
73,
-63,
48,
127,
38,
79,
113,
-66,
-61,
42,
24,
-61,
44,
40,
107,
61,
-40,
-79,
-86,
21,
109,
3,
-77,
22,
-98,
3,
-56,
46,
-112,
49,
-112,
-8,
114,
-74,
-126,
-76,
11,
-101,
-120,
102,
98,
33,
13,
-49,
-84,
-88,
47,
126,
-99,
-90,
-106,
40,
75,
41,
-73,
-99,
68,
82,
6,
124,
-26,
-123,
93,
108,
-125,
-49,
-112,
-15,
-49,
52,
-112,
-57,
-21,
-119,
54,
113,
-52,
-14,
92,
36,
50,
27,
-49,
-67
] |
Milton, J.
This was a prosecution brought under section 2420 of the General Statutes of 1889, which reads as follows :
“Whoever overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, cruelly beats, mutilates or kills an animal, or causes or procures an animal to be so overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived of necessary sustenance, cruelly beaten, mutilated or killed, and whoever, having charge or custody of an animal, either as owner or otherwise, inflicts unnecessary cruelty upon it, or unnecessarily fails to provide it with proper food, drink, shelter or protection from the weather, shall be punished by imprisonment in jail not exceeding one year, or by fine not exceeding two hundred and fifty dollars, or by both such fine and imprisonment.”
The appellant contends that the complaint is insufficient in several respects and that the court erred in overruling the motion to quash. One of the objections made to the sufficiency of the complaint is, that it “does not set forth the nature of the accusation against the defendant” in that it fails to set forth the facts showing wherein the defendant overdrove the horses. He argues that while it is sufficient, ordinarily, to charge the offense in the language of the statute, yet when the words are not precise and are uncertain in their meaning, or imply a multiplicity of acts that may or may not constitute the offense in whole or in part, it is necessary to charge the facts that give special character or significance to the acts charged to have been done. We think this contention is well founded. The Supreme Court of North Carolina, in State v. Watkins (101 N. C. 702, 8 S. E. Rep. 346), says in the syllabus :
“Under Code N'. C. §2482*, declaring it a misdemeanor to ‘ wilfully overdrive, overload, wound, injure, torture, torment, deprive of necessary sustenance, or cruelly beat, or needlessly mutilate, or kill, . any useful beast, fowl, or animal/ an indictment charging that defendant did wilfully, etc., ‘ torture, torment, and act in a crual manner towards ’ a hog, does not sufficiently charge the statutory offense ; the words employed in the indictment not having any technical or certain meaning, but being rather conclusions from a number of facts.”
And in the opinion :
“ Thus, the words of the statute mentioned— ‘overloaded/ ‘injured/ ‘tortured/ and ‘tormented’— do not imply or describe the acts charged to have been done with certainty ; they each imply a variety of acts that may or may not constitute the offense or parts of it. The acts should be so specified and charged as to show that they meant what the statute intends by overdriving, injury, torture, and torment. The court must see that the offense is charged, and it and not the pleader must determine that the acts done constitute the offense denounced by the statute.”
Bishop (1 New Criminal Procedure, § 629), in referring approvingly to the foregoing case, says :
“A technical term creating, not defining an offense, though sufficient in a statute, is wholly inadequate in the allegation. The indictment must cover, not necessarily the statutory terms, but the interpreted elements thereof. Thus ‘torture’ — under the statutory words ‘maliciously and cruelly maim, beat, or torture any horse, ox, or other cattle/ a charge of torturing was held to require an expansion by showing the means •and their effect; so as, in the words of Rayland, J., to enable the court to ‘ see that such means have the inevitable and natural tendency to produce the effect in which the criminal charge consists.’ Hénce the specification in the indictment that the defendant tied brush or boards to the tail of a horse was inadequate, because' this would not “necessarily produce torture.”
In The State v. Beverlin, (30 Kan. 612), our Supreme Court uses the following language,:
“As a general rule, the indictment or information must contain a specific description of the offense charged, and it is not enough to state a mere conclusion of law; thus, it would be insufficient to charge the defendant with ‘ stealing ’ or ‘ murdering.’ Wharton’s Criminal Pleading and Practice, § 154. The object of this general rule, supported by the constitution and statute, is that the .defendant may be fairly informed of the nature and cause of the offense charged against him, and that the court, by an inspection of the record alone, may determine whether, admitting the truth of the charge, a thing has been done which is forbidden by law. Notwithstanding this general rule, there are exceptions, as it is not requisite to charge in the information anything more than is necessary to clearly and adequately express the offense. It is sufficient to frame the information in the words of the statute, or in words of like meaning, in all cases where the statute so far individuates the offense that the offender has proper notice, from the mere adoption of the statutory terms, or of terms equivalent thereto, what the offense he is to be tried for really is. Wharton’s Criminal Pleading and Practice, § 220.”
The section referred to in Wharton’s Criminal Pleading and Practice reads as follows :
“ On the general principles of common-law pleading, it may be said that it is sufficient to frame the indictment in the words of the statute, in all cases where the statute so far individuates the offense that the offender has proper notice, from the mere adoption of the statutory terms, what the offense he is to be tried for really is. But in no other case is it sufficient to follow the words of the statute. It is no more allowable, under a statutory charge, to put the defendant on trial without the specification of the offense, than it would be under a common-law charge.”
This is a case where the statute simply designates, and does not describe, the offense, and forms one of the exceptions to the general rule as to charging statutory offenses. In the syllabus in The State v. Foster (30 Kan. 365), the court refers to the exceptional cases, in this language :
“In charging statutory offenses, except in those cases in which the statute simply designates and does not describe or name the constituent elements of the offense, it is generally safe to use the language of the statute.”
The motion to quash ought to have been sustained. It was reversible error to overrule it.
The complaint is also properly criticized on the ground that it does not charge the offense as having been committed in Butler County alone, nor as having been committed partly in each of the separate counties mentioned. It cannot be held to be sufficient in this regard.
It. is also claimed that several of the instructions of the court are erroneous. We think that, aside from the fact that they are affected by their necessary connection with an insufficient complaint, the instructions are correct.
The judgment of the trial court will be reversed, and the case remanded for a new trial.
|
[
-16,
-18,
-40,
-83,
10,
97,
40,
28,
-41,
-125,
118,
23,
-17,
-57,
4,
33,
-21,
109,
85,
109,
85,
-78,
119,
-62,
-78,
-45,
-111,
-41,
-65,
79,
-20,
-3,
11,
48,
-54,
93,
-26,
-86,
-63,
92,
-118,
33,
-101,
-19,
-30,
2,
44,
107,
87,
15,
49,
15,
-21,
46,
86,
71,
41,
100,
75,
45,
-56,
113,
-38,
13,
127,
2,
-94,
38,
-67,
3,
90,
44,
25,
57,
0,
-24,
115,
-92,
-125,
84,
77,
-103,
-116,
98,
98,
33,
-51,
-49,
0,
-120,
47,
126,
-113,
-121,
-104,
81,
43,
-120,
-98,
-99,
114,
-48,
13,
122,
-9,
-36,
-47,
96,
83,
-57,
20,
-93,
-17,
36,
-98,
114,
-61,
-89,
1,
117,
-49,
-30,
93,
69,
116,
-97,
-121,
-106
] |
Dennison, P. J.
This action was commenced in the District Court of Barton County, Kansas, by the State of Kansas, to recover from the plaintiffs in error and one D. B. Jones the amount due by reason of the wrongful conduct of said D. B. Jones while county clerk of said Barton County. The plaintiffs in error were sureties upon the official bond of said Jones.
The petition alleges that the county commissioners of Barton County, Kansas, made orders that the said D. B. Jones, as county clerk, draw orders or scrip on the county treasurer of Barton County for the amounts allowed by them to certain persons ; that in drawing said scrip and before parting with the same, and disregarding the order of said board of county commissioners, and disregarding his duties as county clerk of said county, he falsely made, altered and counterfeited the said scrip aforesaid, and that by said falsely making and falsely altering said scrip, and causing the same to be done, he made the same read for $43.60 instead of $3.60, as the said scrip was originally ordered to be drawn by said board; and that the said D. B. Jones presented said scrip to the county treasurer of Barton County and received payment therefor, etc.
The petition also alleges that, by reason of the said D. R. Jones falsely making, altering and drawing up said scrip or warrant, there is due from each and all of the said defendants the sum of forty dollars ; and for the further reason that, by the unlawful acts of the said D. R. Jones in drawing, falsely making, and receiving the payment upon, said falsely made and altered warrant, the conditions of said bond have become absolute, and the sureties thereon, and all of said defendants herein, have become liable to the plaintiff in the sum of forty dollars and interest thereon as aforesaid.
Each count in the petition contains practically the same allegations, differing in amounts to cover the facts of each warrant. The petition also alleges that the facts relating to the conduct of Jones were not discovered until November, 1893.
At the conclusion of the evidence of the defendant in error, the plaintiffs in error interposed a demurrer thereto, which was by the court overruled.
The plaintiffs in error offered no evidence, judgment was rendered against them, and they bring the case here for review.
The specifications of error are based upon the overruling of the demurrer and the propositions which were considered by the court upon such ruling.
The plaintiffs in error contend that there are two general propositions which entitle them to a reversal of this case : First, that the acts of Jones as shown by the evidence were not his official acts, but were acts performed and done as the agent of certain persons who had authorized Jones to present all scrip drawn in their name to the county treasurer and receive for them the money due ther.eon; and, second, that the pleadings and evidence show that the cause of action was barred by the Statute of Limitations.
In arguing these propositions, counsel for plaintiffs in error seem to overlook the fact that the petition alleges and the evidence shows that the duty of the county clerk was to draw the warrants for the amounts allowed by the board of county commissioners, and that he drew the warrants for a greater sum than was so allowed. This conduct was a breach of official duty for which his bondsmen were liable.
The cause of action accrued when the breach occurred, unless for undiscovered fraud. In determining when a cause of action upon an official bond is barred, it becomes necessary to determine when the cause of action is barred as to the official. If the cause of action is barred as to Jones, it is barred as to his sureties. Ryus v. Gruble, 31 Kan. 767. In any event, the action upon the bond is barred in five years after the cause of action accrues, by virtue of the provisions of subdivision 5 of section 18 of the Code of Civil Procedure.
In this action the plaintiff seeks to recover the money which Barton County had paid upon the warrants fraudulently drawn by Jones.
This is clearly an action for relief on the ground of fraud, and comes within the third subdivision of section 18, supra. The cause of action accrued upon the discovery of the fraud. The petition alleges, and there was an abundance of evidence to show, that the fraud was discovered in November, 1893.
The judgment of the District Court is affirmed.
|
[
112,
101,
-24,
93,
106,
-96,
40,
-94,
-61,
-111,
-27,
83,
-19,
-30,
4,
123,
-32,
61,
-11,
120,
-30,
-73,
31,
103,
-110,
-69,
-51,
-43,
49,
77,
-12,
-41,
76,
48,
-54,
29,
6,
0,
-59,
-36,
-116,
1,
9,
-60,
-39,
73,
52,
125,
18,
11,
113,
46,
-30,
42,
52,
115,
105,
44,
-55,
-87,
-55,
-15,
-101,
69,
95,
31,
-127,
71,
-100,
5,
88,
-65,
-104,
53,
0,
-24,
115,
-122,
2,
-12,
33,
-103,
9,
110,
98,
32,
-108,
-83,
-76,
-84,
54,
-2,
-115,
102,
-110,
72,
75,
41,
-74,
-99,
84,
-44,
7,
-12,
-31,
12,
29,
124,
-125,
-53,
-112,
-109,
-116,
36,
-118,
-109,
-9,
-128,
-80,
113,
-51,
-10,
92,
71,
16,
-69,
-97,
-23
] |
Schoonover, J.
On the first day of September, 1890, the defendants in error filed their amended petition in the District Court of Comanche County, alleging, in substance, the conversion of certain property by plaintiff in error. A trial was had and a verdict rendered against plaintiff in error on the ninth day of March, 1892. A motion for a new trial was filed on the tenth day of March, 1892. On the twelfth day of November, 1892, the motion was overruled.
The defendants in error now insist that this case be dismissed for the reason that it does not appear from the record that the application for a new trial was made at the term the. verdict was rendered. Paragraph 4403, General Statutes of 1889, provides :
‘ ‘ The application for a new trial must be made at the term the verdict, report or decision is rendered; and, except for the cause of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.” •
It appears, from the language in the motion and from the file marks by the clerk of the court, that the application was made within three days after the verdict was rendered. But we are unable to discover anything in the record that would indicate that the application was made at the term the verdict was rendered, or that the term of the District Court continued after the ninth day of March, 1892.
The application was overruled on the twelfth day of 'November, 1892, and no reasons for the refusal of the new trial are stated.
It has been repeatedly held by the Supreme Court that “the application for a new trial must be made at the term the verdict, report or decision is rendered.” Section 308, Civil Code; Glass Co. v. Bailey, 51 Kan. 192.
While this, court has held, “Where the record fails to show that the motion for new trial was filed during the term at which the verdict was rendered, it will be presumed, for the purpose of upholding the -judgment of the court below and the ruling upon the motion, that it was not made in time, and was for that reason oyerruled.” Dudley v. Barney, 4 Kan. App. 122.
It may be contended that this rule is too severe, but the language of the statute is very plain ; it is reasonable, and a compliance with its provisions can work no hardship to the careful practitioner.
The petition was not attacked in the trial court by motion or demurrer. Liberally construed, it is sufficient> as against an objection to the introduction of evidence upon the grounds that the petition fails to state facts sufficient to constitute a cause of action.
For the reasons first stated, this case will be dismissed.
|
[
-80,
102,
-100,
-83,
-86,
96,
34,
-98,
72,
-127,
39,
83,
-83,
-101,
20,
125,
67,
77,
117,
112,
-50,
-77,
6,
81,
-14,
-73,
-61,
-41,
119,
111,
-26,
112,
76,
48,
-54,
-43,
70,
-54,
-127,
28,
-114,
-122,
-119,
-28,
-64,
8,
48,
125,
22,
14,
49,
110,
-13,
43,
30,
-49,
104,
44,
-55,
-68,
-39,
-16,
-110,
13,
127,
4,
-95,
23,
-40,
-57,
112,
40,
-100,
61,
19,
-24,
114,
-10,
-122,
-108,
45,
89,
0,
98,
102,
33,
29,
-17,
-72,
-68,
39,
30,
-115,
-89,
-112,
8,
107,
108,
-74,
-99,
117,
22,
39,
124,
-19,
-108,
29,
44,
-126,
-49,
-78,
-65,
-113,
124,
-86,
11,
-49,
-94,
48,
112,
-52,
-32,
92,
71,
113,
-101,
-98,
-99
] |
Wells, J.
There are five specifications of error. We will consider the first two together. By these the plaintiff in error alleges that the court erred in admitting testimony as to the value of old corn, and testimony as to the difference in' value of old and new corn. One of the claims for damages was that the plaintiffs had, during the fall of 1892, furnished defendant a certain amount of number two, white corn, of the crop of 1891, and, under the contract, were to have the same corn or an equal amount of corn of the same kind and quality returned ; but that the defendant returned part only, and that of an inferior quality, from the crop of 1892. If old corn was of a greater value than new corn, the plaintiffs were entitled to have returned the same kind that they deposited; and they had a right to prove the difference in value of the corn deposited and the corn returned. If there was no difference in value, that question would be immaterial.
The third specification of error is the giving of an instruction which is as follows :
“With reference to the corn that has not been redelivered to the plaintiffs, if you believe from the evidence that this corn was to lie taken and redelivered to the plaintiffs as they desired and ordered it, and that orders had been made — requisitions made from the plaintiffs to the defendant, to redeliver this corn to them by loading it in cars for shipment, and the defendant has failed to do that within' a reasonable time after the request and order were made, and that it still refused to do that up to the commencement of this action, I say to you that would amount to a conversion of the corn, and the plaintiffs would be entitled to a verdict at your hands for the market value of the corn at the time and place that the corn should have been delivered to the plaintiffs by the defendant. But if you believe from the evidence that the defendant was not under any obligations to deliver this corn to the plaintiffs, except as cars were furnished at its elevator, and that it was the duty of the plaintiffs under their contract to furnish the cars, and that the plaintiffs, notwithstanding they made orders for this grain, did not furnish the cars, and that the cars in fact were not furnished at the elevator, and it was the contract that the plaintiffs were to furnish the cars, then I say to you that the plaintiffs cannot recover for this claim, and it would not amount to a conversion on the part of the defendant until cars were furnished after orders were made for the delivery of this Corn.”
The first objection urged to this instruction is that the defendant did not refuse to deliver the corn, but on the other hand it always promised to do so and failed to keep its repeated promise. A person cannot, by promising to perform his legal duty and failing to do it, avoid liability. He is in no better position than if he had at once notified the other party that he did not intend to comply with the demands. It would have been more accurate if the court had used the word “fail” instead of “refuse,” but we cannot see that the defendant was injured by this inadvertence. It is contended that the instruction is bad because it makes no exception for delay caused by matters beyond the defendant’s control. All these matters were proper subjects to be presented to the jury to show what was a reasonable time in which to make the delivery. Finally, the plaintiff in error argues that because its refusal to make the delivery was not in words, but was in acts only, it could not be held for conversion. The instruction gave the law correctly on that subject.
The next complaint is of the giving of an instruction which is as follows :
“I will say to you, also, if you find that the contract between these parties was that this corn was to be separately binned and kept separately, and the identical corn redelivered to the plaintiffs when called upon for it, then if the defendant commingled that corn with other corn that would amount to a conversion ; but if that was not the contract to keep it separate, then the commingling of that corn with other corn would not be a conversion ; all that the defendant would be required to do would be to keep on hand sufficient corn of that grade to fill plaintiffs’ order and deliver it to them yrhen it was called upon so to do.”
Counsel for plaintiff in error makes the mistake of supposing that the preliminary conversation had between tñe parties at the time they first made arrangements to do business with each other, constituted all of the contract upon which evidence could be introduced, and says in his reply: “Counsel for defendants in error admits in his brief, that the corn was put into the elevator ‘ under no special contract or agreement,’ which eliminates one question from the case.” This is not correct either as to the fact, or the contention of counsel for defendant in error. If a consignment of property is made to a party engaged in business as a bailee, with specific directions as to how the property is to be disposed of, under ordinary circumstances the bailee must either refuse to accept the consignment, or comply in substance with the instructions of the consignor. In this case there was complete evidence offered showing that the consignment was accompanied by instructions to bin certain of the corn together; and also that these instructions were received by the defendant prior to the unloading of the corn. This evidence, although contradicted justified the instruction as against the objection of the defendant. As to the admission in the brief of the defendant in error, it is apparent, both by the language of the so-called admission and the argument in relation to the subject, that what was meant was, that at the first conversation there was nothing said as to either the price or the method of storing, but, as to the latter, instructions were given by letter. These it was the duty of the defendant to follow.
The plaintiff in error argues, but one additional point — that the verdict is contrary to the undisputed evidence in the case. We do not think this is true ; on the contrary, the weight of evidence supports the verdict. We see no material error in the case.
The judgment will be affirmed.
|
[
-14,
124,
-7,
-19,
10,
96,
42,
-118,
69,
-64,
39,
83,
-19,
-41,
16,
121,
-27,
125,
-44,
106,
-42,
-93,
3,
35,
-46,
-77,
-55,
-43,
49,
109,
117,
92,
76,
52,
-126,
-99,
-30,
-64,
65,
92,
-50,
-102,
57,
105,
-7,
0,
52,
45,
52,
73,
113,
-114,
51,
44,
24,
71,
-21,
40,
-21,
57,
-31,
-15,
2,
13,
109,
6,
-80,
38,
-98,
69,
-38,
12,
-112,
52,
48,
-23,
122,
-74,
-126,
-11,
45,
-103,
8,
98,
102,
16,
5,
109,
-71,
-100,
39,
-33,
15,
-92,
-44,
64,
11,
35,
-66,
-100,
52,
0,
14,
-34,
-4,
93,
31,
112,
3,
-17,
-110,
-109,
-83,
102,
-104,
-101,
-17,
-93,
-110,
81,
-51,
-90,
93,
7,
126,
-101,
-122,
-22
] |
Mahan, P. J.
The plaintiff in' error sued the defendant in error, who was sheriff of Shawnee County, in replevin, to recover the possession of clothing, claiming ownership under a chattel mortgage from Jacob Levi. The defendant had possession, as sheriff, under a levy of attachment against Levi at the suit of one of Levi’s creditors. The contention of the defendant was that the mortgage was void because made to hinder, delay, and defraud the creditors of Levi, and that Sax took it with knowledge of this vice. Sax and Levi are brothers-in-law. Sax resides in Chicago and does business in Ottumwa, Iowa; Levi resides in Topeka and was engaged in mercantile trade there. There was a trial to the court and a jury, and verdict and judgment were rendered for the defendant.
The plaintiff makes the following assignments of error :
“ 1. The court erred in permitting the defendant to introduce incompetent, irrelevant and immaterial evidence.
“2. The court erred in permitting the defendant to introduce incompetent, irrelevant and immaterial documents in evidence, and also without first laying a proper foundation therefor.
“3. The court erred in permitting the defendant .to introduce record evidence without any preliminary proof of such records.
“4. The court erred in overruling the plaintiff’s motion for a new trial.
“5. The verdict and judgment are contrary to the law and the evidence.”
These assignments are general and indefinite, and do not conform to the rules of this court in that they do not set out the evidence complained of. They do not suggest by way of reference to the record that of which complaint is made. However, by examination of counsels’ argument, we discover that the first assignment is directed to evidence of certain acts of Levi, which was admitted, doubtless, to prove an unlawful purpose on his part in making this mortgage. With some of these acts Sax had no immediate connection, yet they were competent for the purpose above indicated. In some of the acts so proven Sax was directly concerned, and, so far, they were properly admitted to prove his knowledge of Levi’s acts and the relations subsisting between them. One of the issues in the case involved Levi’s good or bad faith — lawful or unlawful purpose. The other issue was as to Sax’s participation in, or knowledge of, Levi’s faith or purpose, as disclosed by his acts and declarations at and prior to the making of the mortgage.
The second and third assignments of error, so far as we can gather from the argument, are directed to the admission of records of deeds and chattel mortgages made by Levi to the plaintiff and to members of Levi’s family. The contention seems to be that these records are subject to the rules governing the admission of secondary evidence, as copies of documents lost or destroyed. The statute establishes a different rule. A party desiring to use the record of any instrument properly recorded, that is, eligible to be recorded, is only required to show that the original is not in his possession or control, and this may sometimes be presumed by the existence of other facts.
At the conclusion of plaintiff’s brief, some references are made to the court’s instructions ; but as no assignment of error covers the matter of the court’s instructions, we do not deem it necessary or advisable to consider them.
We find no error in the matters challenged by the assignments of error, and the judgment is affirmed.
|
[
-80,
104,
-7,
63,
58,
-32,
40,
10,
65,
1,
-73,
115,
-51,
-54,
6,
105,
-12,
-7,
84,
123,
69,
-77,
47,
99,
-46,
-110,
-47,
69,
-76,
77,
116,
-33,
13,
52,
74,
29,
70,
72,
-43,
-44,
-114,
-116,
40,
109,
-39,
65,
48,
-69,
20,
10,
113,
13,
-13,
46,
55,
75,
75,
40,
77,
57,
80,
-8,
-67,
-51,
89,
22,
-79,
55,
-40,
7,
72,
58,
-110,
49,
1,
-23,
122,
-74,
-126,
116,
1,
-119,
-87,
102,
98,
32,
13,
-17,
48,
-115,
47,
119,
29,
-89,
-112,
72,
75,
45,
-73,
-100,
125,
20,
-89,
-4,
-28,
5,
29,
108,
0,
-2,
-44,
-79,
-97,
54,
-98,
-109,
-1,
6,
-96,
81,
-49,
-95,
89,
7,
50,
27,
-98,
-3
] |
Dennison, P. J.
This case was decided by this court at the December, 1896, term. Neuforth v. Hall, 5 Kan. App. 726.
A petition for a rehearing was filed and allowed. A careful review of the points raised in the petition for a rehearing and of the record in this case, satisfies us that the judgment of the district court should be affirmed. *
On October 2, 1879, Martin Gutzweiler and Lizzie, his wife, entered into a contract to sell a certain eighty-acre tract of land in Barton County, Kansas, to one Andrew Sulzman, and the defendant in error, Joseph Hall, for the sum of one thousand dollars, three hundred dollars of which was to be paid in cash and the remaining payments were evidenced by four promissory notes of $175 each, payable in one, two, three and four years respectively, and drawing eight per cent, interest after date until paid. Of the cash payment, Hall paid $150, and Sulzman paid a portion thereof and gave his individual note to Gutzweiler for the balance of his share, and Sulzman and Hall gave their joint notes for the remaining seven hundred dnllars.
Two of the notes matured, and, being unpaid, were reduced to judgment and paid by Hall on October 5, 1882. On December 15, 1883, an agent of Gutzweiler went to Sulzman and gave to him the individual notes of Sulzman and represented to him that Gutzweiler had defaulted upon his payments to Merten and would lose what payments he had made to Merten. He also told Sulzman that Hall had agreed to relinquish his rights under the contract and that Gutzweiler would give up the other notes to Hall. Sulzman then executed the following instrument of writing :
“December 15, A. D. 1883. — I, Andrew Sulzman, do hereby acknowledge and certify that I relinquish all my claim aiid right on the east half of the southeast quarter of section 11, township 19, range 15, in Barton County, Kansas, and give up to Martin Gutzweiler all my rights against all persons whomsoever. —Andrew Sulzman.”
“Witness by me this fifteenth day of December, 1883.— Sebastian Striegel.” '
“ Filed for record October 27, 1887, at five o’clock p.m.— Chas. E. Dodge, Register of Deeds.”
Sulzman says he executed this instrument because the agent told him that Hall was willing to relinquish.
It will be profitable to determine the rights of Gutzweiler and Hall after Gutzweiler had procured the rights of Sulzman under the written instrument. Hall had paid one-half the cash payment and one-half of the joint notes. Sulzman had paid fifty dollars. Prior to the time he procured Sulzman’s rights, Gutzweiler had a lien upon the whole tract of land for the unpaid purchase money, being the amount evidenced by the third and fourth notes of #175 each, with interest. Sulzman relinquished all his claim to Gutzweiler and gave up to him all his rights against all persons whomsoever. Sulzman had a right to pay the remainder of his share of the purchase money, and then he and Hall could demand a deed from Gutzweiler. Gutzweiler bought this right and gave the Sulzman note for it.
Now, what are Hall’s rights? He has paid half the purchase price of the land. Gan he pay the balance of the purchase money and demand the deed from Gutzweiler for the whole tract ? If he tendered payment to Gutzweiler would Gutzweiler be compelled to accept it and convey the whole tract to him ? Certainly not. He would reply that he had contracted to convey to Andrew Sulzman and Joseph Hall, but that he had not contracted to convey to Joseph Hall alone. Hall could tender only the balance of the purchase money and demand a conveyance to Mr. Sulzman and himself. He would then have a lien upon Sulzman’s interest for the amount he had advanced to pay Sulzman’s share. 11 Am. & Eng. Encyc. of Law, 1079, 1081. This would be the case whether they hold as joint tenants — as they might when this contract was made — or as tenants in common. Then, again, Gutzweiler could say to Hall, “ I will not deed to you and Sulzman for I am now the owner of Sulzman’s right to a deed. I represent him now in this transaction and the most you can require of me is that I convey to you and Gutzweiler.” Not only could Gutzweiler assert his claim to be substituted to the rights of Sulzman, but if the land had for any reason greatly enhanced in value he would certainly have done so. Can it then be said that if the land had greatly depreciated in value, Gutzweiler could say to Hall, “You must pay the whole of the purchase price and take the whole tract of land”? With much more propriety could Hall say to Gutzweiler, “You have purchased the rights of Sulzman; you must take the burdens as well as the benefits of your purchase.”
It is argued by the plaintiffs in error, and the case was formerly decided by this court upon the theory, that this contract was an entire contract and that Hall must compel the specific performance of the whole contract or none of it. If Gutzweiler purchased Sulzman’s interest and takes it with all its benefits and. burdens, then this may be an entire performance of the contract and the title will stand in Hall and Gutzweiler instead of in Hall and Sulzman. If Gutzweiler does not take Sulzman’s interest with its burdens attached to it, but only takes the benefits, then Gutzweiler, who is one of the parties to the contract, has rendered complete performance by Hall Impossible, by acquiring the benefits of Sulzman’s contract, which Hall cannot secure by assuming its burdens.
This is an equitable proceeding, and it would seem that when Gutzweiler contracted with Sulzman and Hall to convey to them a certain tract of land, upon the payment of one thousand dollars, and received from one of them half of the purchase price and then went to the other one and secured his rights in the contract, whereby he Was relieved from conveying any portion of said land to him, that in equity and good conscience he should be willing to place the other party in as good a position as though such a release had not been obtained by him. He agreed to convey to Hall and Sulzman by such a conveyance as would give to Hall a half interest in the land, and Hall paid his full share of the consideration therefor. We believe that he was entitled to the conveyance of a half interest in the land from Gutzweiler when Gutzweiler obtained Sulzman’s rights in the land. Courts of equity have the power to grant relief in such cases as this. See Crockett v. Gray, 31 Kan. 346; 22 Am. & Eng. Encyc. of Law, 1079, and notes.
As applying to the facts established in this case, we conclude, first, that a joint tenant can sell his rights under a contract of purchase of land held jointly,by himself and another ; second, that where a vendor, who has entered into a written contract to sell certain lands of which he is the owner, procures a relinquishment in writing of the claims and rights of his vendee to the land, and also procures in writing the rights of his vendee against all persons whomsoever, h.e thereby relieves himself from the necessity of conveying said land to his vendee and becomes the owner of the equitable as well as the legal title to said land; third, that where a person has entered into a written contract to.sell land to two or more persons, he can procure the rights of any oné of his vendees under the contract, with the same effect as to such vendee's interest as though he had procured the interests of all his vendees therein.
It therefore follows that, when Gutzweiler secured Sulzman's claims and rights in the land, he relieved himself from the necessity of conveying such interest to any one, and became the equitable as well as the legal owner of the undivided one-half interest in the land he had contracted to convey to Sulzman and Hall.
The undivided one-half of the land being absolutely vested in Gutzweiler, freed from the claims and rights of any one under the contract, must it be said that the other joint tenant, after having paid the full purchase price for the other undivided one-half of the land, can receive no relief from a court of equity? Such a doctrine cannot be upheld by this court.
In justice to the former members of this court who passed upon this case at the December, 1896, term, it should be said that the instrument by which Gutzweiler obtained the relinquishment of Sulzman and his rights in the land, was not brought prominently to their attention, and it was not as carefully considered by them as it should have been.
It is alleged that Hall told Sulzman that he would take all the land and pay all the purchase price, and that thereby Hall bought Sulzman’s interest in the land before Gutzweiler did, and that he thereby obtained the right to pay the whole price and receive the whole of the land. In answer to this claim we reply that this contract was for an interest in or concerning real estate, and not in writing (Becker v. Mason, 30 Kan. 697), and that Gutzweiler was not a party to it or bound by it to convey to Hall alone.
It is also contended that Hall, by his laches, has forfeited his right to ask for a conveyance of the land. The record discloses that Robert Merten, who had a contract from the railroad company for the land, entered into a contract with Gutzweiler by which he agreed to convey the land to him upon the payment of $460.71 as follows : One-tenth on February 1,1878, and one-tenth on the first day of February of each year thereafter until the whole is paid. By the terms of this contract, therefore, Gutzweiler was not entitled to a deed from Merten until February 1, 1887, although he agreed to convey to Hall and Sulzman on October 2, 1883. On February 10, 1884, Gutzweiler defaulted for ten days, and Merten refused to accept any further payments upon the contract. On May 1, 1884, Gutzweiler and wife assigned their interest in the contract to Phillip Neuforth, one of the plaintiffs in error, and he tendered to Merten the sums due each year until said February 1, 1887, and afterward brought suit against Merten for specific performance of this contract, and upon October 7, 1887, procured a decree of the District Court of Barton County, Kan sas, granting to liim the land. The case was taken to the Supreme' Court, and the decree was on December 6,1890, affirmed It will be seen, therefore, that,at no time prior to December 6, 1890, could Gutzweiler or Neuforth have given Hall a title to the land. Neither could Hall have maintained an action for the specific performance of the contract prior to that time, for the courts will not decree the specific performance of a contract which it is-impossible to perform. 22 Am. & Eng. Encyc. of Law, 1018.. It will therefore be seen that Hall is guilty of no laches.
.This will also answer the objection that the cause is barred by the Statute of Limitations. It is conceded that Neuforth purchased the interest of Gutzweiler with full notice of all the transactions in connection with it, and took it with all the benefits and burdens which would attach to it if Gutzweiler had kept it.
It is also contended that Hall is estopped from setting up any claim to the land, for the reason that Swier, as Gutzweiler’s agent, testifies that he went to Hall in the spring of 1884 and told him that Gutzweiler wanted to know whether he was going to make the payment or give up the land, and that he said he was going to give up the land. It may again be said that this contract was for an interest in or concerning real estate and not in writing. Becker v. Mason, supra.
The judgment of the District Court is affirmed.
|
[
-14,
-19,
-72,
77,
-104,
-88,
50,
-102,
74,
-77,
39,
83,
-23,
-38,
4,
61,
-90,
45,
81,
104,
-26,
-73,
66,
34,
-48,
-77,
83,
-43,
-79,
79,
-12,
-105,
77,
32,
74,
-107,
-122,
-62,
-59,
28,
-114,
12,
-86,
76,
-37,
-64,
53,
-67,
54,
74,
113,
-86,
-93,
33,
61,
65,
77,
44,
127,
41,
-47,
-72,
-70,
71,
127,
23,
-80,
39,
-34,
3,
74,
-18,
-102,
53,
9,
-24,
115,
-74,
-122,
118,
12,
-67,
45,
-26,
98,
51,
21,
-17,
-80,
-104,
38,
-9,
13,
-25,
-76,
88,
19,
8,
-98,
-103,
116,
22,
7,
-4,
-27,
-123,
24,
-20,
2,
-117,
-106,
-109,
31,
124,
-126,
11,
-45,
-113,
36,
113,
76,
-26,
92,
71,
112,
-101,
-98,
-7
] |
Mahan, P. J.
Upon the authority of Dudley v. Barney (4 Kan. App. 122), and Hover v. Tenney (27 Kan. 133), the motion to dismiss must be sustained unless the record discloses some error of which the plaintiff may avail itself without a motion for a new trial; because it does not appear from the record that the motion for a new trial was filed at the term of court wherein the judgment was rendered.
The assignments of error are as follows : First. The court erred in overruling plaintiff’s demurrer to the fourth defense set up by the defendant in its answer. Second. The court erred in admitting evidence, etc. Third. The court erred in overruling the plaintiff’s motion for a new trial.
The presumption being that the court overruled the motion for a new trial because it was not filed at the term when the judgment was entered, the third assignment fails ; and the second assignment cannot be considered, because the error, if any, was one occurring at the trial and was waived by the failure to file the motion for a new trial. Was the failure to file the motion for a new trial a waiver of the error in overruling the demurrer, if such order was error? Or, in other words, was a motion for a new trial necessary to authorize this court to review that order? Under the Code there are issues of law and issues of fact. § 266, Code. A new trial is the re-examination of an issue of fact, in the same court, after verdict, report, or decision ; and the Code prescribes the grounds therefor. § 306, Code. A demurrer presents an issue of law, and a judgment thereon is not reviewable upon a motion for a new trial. It is only where the action of the court in the course of the trial of issues of fact is sought to be reviewed, that a valid motion for a new trial and order thereon by the trial court is a necessary precedent fact. Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36; Water-Supply Co. v. Dodge City, 55 id. 60; Nute v. Glucose Co., 55 id. 225. Hence we conclude the judgment of the court in overruling the defendant’s demurrer to the fourth defense maybe reviewed, notwithstanding there was no motion for a new trial. Consequently, the motion to dismiss must be denied.
The action was upon a paving contract, in writing, between the Barber Paving Company and the City, whereby the Company sought to recover an alleged balance for paving that part of Quincy Street in the City of Topeka granted by ordinance to the Rapid Transit Company for a right of way. The fourth defense was that the two blocks of the City between which that part of the street ran, constituted two separate special taxing districts of the City ; that the paving was a special improvement, for which only the land in these districts was liable to be assessed, and therefore, the cost of such paving could not be charged generally against the property in the City ; and, therefore, the City was not liable therefor under its contract.
Does this fourth count state a defense to the plaintiff’s action, if anything was due it for work under the contract? Surely not. The statute authorizes a city to determine when a street should be paved, and how, and authorizes it to make a contract therefor. The contractor has no claim against the taxing districts through which such street runs, nor against the property or the owners thereof. The city must make the assessment and apportion it to the property liable therefor, and, ultimately, through the machinery provided by the State, collect the assessments and pay the contractor or the bonds of the city given in payment. The statute limits the authority of the officers of the city by requiring them, in making the assessment, to assess for these improvements by taxing districts ; but it does not relieve the city from its obligation to pay as provided in its contract, and remit the contractor to the districts or owners of property for his compensation. It was error to overrule the demurrer.
The finding of the court is a general finding for the City and against the Company, so that it and the judgment for costs may be founded upon the defense of the fourth count, as well as any other contained in the answer. The judgment is reversed, with directions to sustain the demurrer to the fourth coúnt of the answer, and award a new trial.
|
[
-78,
-26,
-36,
-65,
14,
97,
32,
-68,
-63,
-127,
63,
83,
-83,
91,
-124,
117,
114,
73,
85,
105,
-60,
-77,
7,
-64,
-14,
-106,
-63,
87,
55,
-17,
-18,
-66,
76,
-72,
-21,
-43,
70,
-55,
-59,
20,
-122,
8,
24,
69,
-7,
-86,
48,
113,
86,
31,
117,
78,
-13,
40,
27,
-61,
-23,
56,
-52,
-79,
-62,
-104,
-101,
13,
126,
0,
-95,
37,
-102,
7,
88,
44,
6,
57,
27,
-24,
51,
-42,
-126,
84,
107,
-101,
8,
98,
98,
33,
69,
-17,
-71,
-84,
39,
27,
13,
-89,
-103,
64,
75,
11,
54,
-67,
20,
22,
6,
106,
-25,
-108,
29,
44,
2,
-49,
-112,
-77,
-113,
116,
6,
-63,
-61,
33,
16,
100,
-50,
-24,
92,
103,
25,
59,
-36,
-99
] |
Dennison, P. J.
This action was brought in the District Court of Hamilton County, Kansas, by Joseph Herr to recover a judgment against the School District upon several warrants which had been issued by the District to one Anna L. Hammond, and a warrant issued to T. D. Hammond, and transferred by them to said Herr: ■
The action was tried by the court without a jury, judgment was rendered in favor of the plaintiff, and the School District brings the case here for review.
The material errors complained of may all be argued and decided upon the demurrer filed by the District to the plaintiff’s'petition, and are.all centered in one question; and that is, Does the petition state facts sufficient to constitute a cause of action in'favor of the plaintiff below and against the School District? The warrants attached to the petition as exhibits are very similar, and one of them reads as follows :
“Office of School District Clerk.
Name of Treasurer, Joe H. Borders. P. O. address, Ooolidge.
“October 28, 1887. — Treasurer of School District No. 1, County of Plamilton, State of Kansas : Pay to Anna L. Hammond or order the sum of eighty dollars, for teacher’s salary from October 3 to October 28, out of any funds in your possession raised or appropriated for such purpose.
R. C. Dryden, District Cleric.
F. H. Pomeroy, Director.”
The warrants were issued during the period between October 28, 1887, and June 10, 1888. All except one were presented to the treasurer for payment on May 22, 1888, and the other one was presented June 12, 1888. On the dates they were presented for payment, the treasurer indorsed on them, “Not paid for want of funds.” This action was commenced on September 1, 1894.
The plaintiff in error contends that the cause of action accrued when the warrants were issued, or at least when they were presented and not paid for want of funds, and that therefore the statute began to run on at least May 22 and June 12, 1888.
The defendant in error contends that the cause of action does not accrue until the District has funds with which to pay the warrants, or until sufficient time has elapsed so that they might have levied and collected a tax for that purpose.
The defendant in error also contends that the warrants should have been registered, advertised, and paid in the order of their presentation, as required by the Act of 1887.
It is entirely immaterial, so far as the demurrer to the petition in this case is concerned, which conten tion is adopted as the law in Kansas. If the cause of action accrued either when the warrants were issued or when they were presented and not paid for want of funds, then more than five years had elapsed before the commencement of the action.
If the cause of action accrues when the district has funds with which to pay the warrants, then there is no allegation in the petition that the District has at any time had funds on hand sufficient to pay any of said warrants. If the cause of action accrues when the warrants are registered and advertised, then there is no allegation in the petition that the warrants have been registered or advertised. If we adopt either of these theories, such allegations are essential to show that a cause of action has accrued upon the warrants prior to the commencement of the action.
This action was commenced on September 1, 1894. The warrants were all issued and presented for payment on and prior to June 12, 1888. The exhibits to the petition were, therefore, upon their face, barred by the five-year Statute of Limitations. There is no allegation in the petition that they are not so barred ; this is necessary.
Adopting any view suggested by the defendant in error, we are unable to determine that the petition states facts sufficient to constitute a cause of action against the School District.
We might go further, and say that, if we adopt any theory suggested by the defendant in error, we are unable to say, from either the pleadings, the evidence, or his brief, whether a cause of action has yet accrued upon the warrants, and if so, when.
The defendant lays great stress upon the fact, disclosed during the trial by admissions and the evidence, that the School District paid other warrants given for the wages of these same teachers, and also that letters had been written by individual members of the board saying that the District would pay as soon as it could. These matters cannot be considered upon a demurrer to the petition.
The judgment of the District Court is reversed, and the case remanded with instruction to sustain the demurrer of the defendant below to the petition of the plaintiff below.
|
[
-74,
-20,
-32,
-68,
-118,
-32,
106,
-126,
65,
-109,
37,
83,
-19,
-61,
0,
125,
98,
109,
17,
120,
-54,
-73,
75,
-64,
-78,
-78,
-36,
-43,
-75,
79,
-12,
-46,
12,
48,
66,
21,
6,
-62,
-59,
-40,
-114,
-92,
-87,
-32,
-7,
-64,
44,
121,
50,
10,
113,
-82,
-13,
42,
20,
67,
105,
47,
-5,
-85,
-64,
-47,
-70,
5,
61,
30,
-79,
55,
-98,
67,
72,
40,
-104,
49,
16,
-24,
58,
-122,
66,
-44,
33,
-119,
41,
102,
66,
51,
-75,
-19,
-68,
-120,
54,
-13,
29,
102,
-105,
72,
99,
-83,
-98,
29,
117,
85,
7,
126,
-31,
-59,
31,
108,
-113,
-54,
-44,
19,
-114,
52,
-110,
51,
-25,
16,
48,
113,
-52,
102,
92,
103,
50,
-101,
-50,
-99
] |
Milton, J.
The demurrer was properly sustained. The answer fails to show any reason for defendant’s delay in obtaining title. It does not show any right on the part of the defendant to do anything after May 19,1890, toward the performance of the written agreement, which, by its terms, expired that day. It alleges that an oral understanding was had at the time the writing was executed as to-the manner in which title to the land was to be obtained by the defendant; that is, by purchase at the sheriff’s sale, after which he would convey the land to plaintiff. The answer shows an entire failure on defendant’s part to carry out this oral agreement, and it is not claimed that he complied in any wise with the terms and conditions of the written contract. No waiver by plaintiff of its conditions is pleaded in the answer, nor is any claim of modification set up. We must, therefore, hold that the contract expired on May 19, 1890. Bishop on Contracts, § 1344; Cromwell v. Wilkinson, 18 Ind. 365; Potter v. Tuttle, 22 Conn. 512; Benson v. Shotwell, 103 Cal. 163, 37 Pac. Rep. 147.
It would seem that if defendant had been careful or diligent he might have had the land sold under the judgment, and a sheriff’s deed executed, prior to the date named in the contract. The abstract of the judgment against John Deardorff and the plaintiff was filed on September 22, 1890, the day the sale was confirmed. The contract shows that plaintiff was a resident of Ellsworth County. It may be that the debt upon which that judgment was obtained was not in existence on or before May 19. It can be fairly inferred that the judgment did not then exist. Defendant’s own negligence caused the complications which his answer discloses. After the contract to convey had expired, he negligently caused, or negligently permitted, a conveyance of the land to be made to a third party. The moment the land was thus conveyed, a judgment creditor of the third party caused an execution to be issued upon a judgment, the abstract of which he had just filed with the clerk of the court. The land was sold under this execution and the debt of the third party thereby paid. The fact that plaintiff’s debt was incidentally discharged by those proceedings is interesting but not important.
Counsel for plaintiff in error says that “Ellen Dear dorff was from the moment of the making of the contract the owner of the equitable title to the land and had such an interest therein as could be sold on execution, being the owner of all the right Dary had.” If this were true at any time, it was not true after May 19, 1890, for the contract was then at an end, according to its terms. The answer shows no reason for considering it as still existing.
We perceive no error in the judgment of the trial court, and the same is affirmed.
|
[
-112,
110,
-39,
-113,
-6,
96,
34,
-104,
75,
3,
39,
83,
-17,
-62,
21,
61,
-25,
105,
117,
104,
118,
-77,
39,
1,
-46,
-77,
-63,
85,
51,
77,
-12,
-42,
76,
48,
-64,
21,
-30,
66,
-47,
88,
-114,
-122,
-119,
108,
-47,
0,
48,
91,
64,
72,
97,
-114,
-13,
39,
25,
75,
105,
40,
111,
57,
-64,
-88,
-65,
5,
127,
6,
-109,
5,
-104,
3,
-56,
-114,
-80,
121,
2,
-24,
114,
54,
-122,
116,
13,
9,
40,
102,
39,
32,
69,
-19,
-4,
-104,
38,
-66,
-115,
-94,
-48,
88,
42,
108,
-66,
-99,
60,
20,
39,
-18,
-26,
-116,
29,
108,
7,
-53,
-44,
-45,
-113,
124,
-114,
3,
-33,
3,
37,
112,
-49,
-26,
92,
101,
115,
27,
-113,
-16
] |
McElroy, J.
Complaint is made that the court erred in excluding from the consideration of the jury-competent, material and relevant testimony. The interrogatories were competent and the court erred in sustaining the objections ; but this was not reversible error, for the reason- that questions, embracing all that was included in the excluded questions, were put in the course of the further examination of the witness and fully answered. C. B. U. P. Rly. Co. v. Andrews, 41 Kan. 870. The other testimony of the exclusion of which complaint is made, was hearsay and incompetent.
The next complaint made is with reference to the admission of evidence in regard to the Missouri store of Craig Brothers. All of the testimony shows that the witness knew nothing of such store except from hearsay. It appears that both parties took turns at introducing hearsay testimony in regard to the Missouri store, all of which was immaterial. We do not, however, apprehend that such testimony did, in any manner, affect the substantial rights of the plaintiffs in error.
Complaint is also made that the court erred in giving, and refusing to give, certain instructions. Most of the instructions refused were properly so treated because inapplicable to the testimony; so far as any of the instructions refused were applicable to the testimony, they were included in the general charge. The instructions as given fairly presented to the jury the triable issues as made by the pleadings and evidence in the case, and are not subject to any just criticism. The verdict and judgment are in accord with the weight of the evidence.
The judgment is affirmed.
|
[
-80,
-20,
-119,
-99,
-86,
96,
42,
-50,
64,
-125,
117,
-45,
109,
-38,
-107,
123,
-6,
127,
80,
106,
-60,
-93,
39,
-61,
-14,
-9,
-14,
-43,
-79,
111,
-76,
124,
77,
-80,
-62,
-63,
102,
-56,
-51,
82,
-114,
5,
-72,
67,
-7,
-112,
52,
126,
84,
11,
81,
-98,
-77,
40,
30,
-49,
41,
40,
111,
61,
-16,
-48,
10,
13,
77,
17,
51,
54,
-98,
39,
-40,
44,
-112,
53,
1,
-88,
115,
-76,
-122,
-12,
43,
-103,
-120,
102,
98,
35,
24,
-21,
-4,
-75,
62,
123,
-97,
-90,
-108,
72,
11,
97,
-106,
-3,
116,
80,
6,
-6,
-28,
29,
93,
124,
11,
-113,
-78,
-111,
13,
52,
-98,
11,
-5,
-109,
-110,
112,
-52,
-22,
92,
5,
18,
-101,
-114,
-4
] |
McElroy, J.
In this proceeding the plaintiffs in error ask to reverse an order of the District Court overruling a motion to set aside the sale of real estate and sustaining a motion to confirm the sale. On the twenty-seventh day of May, 1891, Amidon recovered judgment against Pope for the sum of $815.71, for costs of suit and for the foreclosure of a mortgage. On September 1, 1891, Amidon died, since which time no proceedings in revivor have been had. On the fourteenth day of January, 1896, an order of sale was-issued, and on the eighteenth day of February the mortgaged premises were sold to Carrie E. Havens, Pope and Hays, defendants in said action, plaintiffs in error, filed a motion asking that said sale be set aside for the alleged reasons, "that the judgment had become dormant; that no proceedings for revivor had been had; that the order of sale was unauthorized and void.” The motion was heard and overruled, and the court entered an order confirming the sale. The plaintiffs in error excepted to the ruling of the court, and they now present the case to this court for review.
The plaintiff in the action is named as defendant in error, but he is dead. The purchaser, Carrie E. Havens, is not named as a party. The case-made was never served on her. There is no defendant in error in this court. No review of the trial court upon a case-made can be had without some proper party being brought into court as defendant in error. In a valid proceeding, the purchaser, by his bid and payment of the purchase money and the sheriff’s return of the sale, becomes a party to the record, and has a right to be heard in this court before any order is made affecting his rights. McDonald v. National Bank, 58 Kan. 461, 49 Pac. Pep. 595; K. O. & T. Rly. Co. v. Smith, 40 Kan. 192.
The petition in error is dismissed.
|
[
-110,
126,
-120,
46,
-22,
96,
40,
-118,
67,
48,
103,
-45,
-19,
-62,
20,
109,
-9,
41,
113,
105,
-60,
-93,
6,
-126,
-45,
-109,
-45,
-43,
-75,
109,
116,
-41,
76,
32,
-54,
-107,
70,
-126,
-51,
84,
-114,
-124,
-120,
-20,
-39,
64,
112,
59,
82,
9,
69,
110,
-13,
45,
59,
75,
105,
40,
-17,
57,
-15,
-68,
-69,
13,
-17,
7,
-95,
55,
-38,
3,
88,
46,
-108,
53,
3,
-24,
123,
-90,
-122,
116,
3,
27,
40,
98,
98,
33,
-127,
-17,
-15,
-72,
39,
31,
-115,
-90,
-43,
24,
67,
108,
-74,
-99,
60,
0,
7,
-2,
-2,
-36,
13,
-20,
3,
-22,
-106,
-77,
-65,
58,
-104,
-125,
-17,
7,
48,
112,
-49,
-32,
92,
102,
112,
-101,
-114,
-3
] |
Schoonover, J.
The defendant was convicted in the police court of the City of Emporia for not ringing the alarm bell attached to his bicycle as required by section 1 of an ordinance of said City, and fined the sum of one dollar and costs. From this conviction he appealed to the District Court of Lyon County, where a jury was waived and a trial had by the court. The defendant was again convicted, and a fine of one dollar and costs imposed.
He now brings the case here for review, and challenges the validity of the ordinance for the reasons that, “the ordinance is unreasonable, oppressive, inconsistent with the laws of the State, makes special and unwarranted discriminations upon the users of the public streets of the City and the different kinds of vehicles in use thereon, and contravenes the common rights of the citizen.”
The following is section 1 of the ordinance :
“Section 1. It shall be unlawful for any person or persons to use any bicycle or tricycle on any street, avenue, alley or public park within the City of Emporia, unless there be securely attached thereto a good and sufficient bicycle or tricycle repeating alarm bell not less than two and one-fourth inches in diameter, or to use any such vehicle in the night time unless there be also attached thereto a good and sufficient bicycle or tricycle lamp or lantern well lighted, for a warning of approach. Upon approaching any and all crossings or crosswalks at the intersections of Commercial, Mechanics and Merchants Streets, with Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Avenues, and at a reasonable warning distance therefrom, every person so using any such vehicle shall ring the alarm so attached, whether of not pedestrians be thereon at the time ; and, upon approaching any and all other walks or other crossings in this City whereat or whereon pedestrians may at the time be, every such person shall ring such alarm bell in such manner and at such distance as fully to warn such pedestrians of the.approach.”
The power of the city of the second class to pass an ordinance regulating the riding, driving or passing of horses, mules, oxen or other teams, or any vehicle drawn thereby, ove'r, upon or across sidewalks, or upon any of its streets, is vested by the Act relating to cities of the second class. ¶ 809, Gen. Stat. 1889.
The bicycle was not in common use as an instrument of conveyance at the time this Act was passed —1872. It is a “ new and improved method of transportation,” now extensively used for convenience, pleasure and business. Its right to the road and street has been determined. It is a vehicle ; and a person riding a bicycle has no rights superior to those of a person riding or driving a horse, and the rules of law applicable to the hack* the dray and the carriage apply with equal force to the bicycle. To forbid a citizen riding on a bicycle the freedom of a public street devoted to the passage of vehicles, would be void as against common right; but the power to regulate implies that the act controlled is lawful, but that certain restrictions are necessary to preserve the public from harm.
To ride a bicycle through a public street of a city is not unlawful; but when ridden at a high rate of speed it may be dangerous, and, for the safety of the public, should be regulated and controlled. This power has been conferred by the Legislature of this State upon the municipal councils of cities óf the second class. The motive of the council in passing this ordinance is not questioned or reviewed. The contention is that it is unreasonable and oppressive. From the record it is disclosed that, at the time the defendant was tried in the District Court, between two hundred and three hundred bicycles were in use in the City; this is sufficient, in our opinion, to challenge the attention of the council.
The manner in which these bicycles were ridden and controlled, their rapid and noiseless turn at corners and approach at crossings, the probable danger to other vehicles and pedestrians, and the crowded condition of the street at certain crossings, were all matters for the consideration of the council. The power to regulate the riding of bicycles on the streets of a city, devoted to the passage of vehicles having been vested in the governing bodies of cities of the second class by the Legislature, we cannot say, as a matter of law, that the requirements of section ,1 are unreasonable.
The judgment of the District Court will be affirmed.
|
[
-48,
120,
-44,
-114,
62,
97,
26,
-68,
113,
-111,
-92,
19,
43,
75,
23,
41,
-5,
125,
-43,
-53,
-43,
-78,
79,
-126,
-72,
-13,
-61,
-41,
55,
79,
-26,
103,
78,
48,
-54,
93,
6,
74,
-91,
-36,
-122,
3,
-117,
-48,
-103,
-112,
36,
122,
16,
15,
-11,
15,
-125,
46,
24,
-23,
-23,
108,
-53,
-75,
-47,
-13,
-71,
-107,
126,
6,
-93,
116,
-101,
-89,
82,
8,
-120,
49,
16,
-8,
115,
-90,
-106,
84,
101,
-101,
-116,
66,
96,
1,
13,
-65,
-96,
-87,
14,
82,
-113,
-121,
-122,
57,
67,
38,
-97,
-105,
87,
23,
102,
122,
94,
-108,
95,
104,
3,
-121,
-108,
-111,
-19,
-16,
-124,
-96,
-1,
39,
48,
49,
-50,
-6,
94,
117,
118,
-101,
-98,
-76
] |
McElroy, J.
This was an action begun by Ohio Lodge No. 132, I. O. O. F., against Guild to enjoin the taking down, destroying, or closing up a stairway on lot eight on Railroad Avenue in the city of Silver Lake, Kan. The case was tried by the court, without a jury, and the court found for the plaintiff.
There is little conflict of testimony in this case. On October 25, 1880, Johnson and Boswell were the joint owners of lots seven and eight on Railroad Avenue in the city of Silver Lake. Lot seven was on the corner of Railroad Avenue and Medora Street, and lot eight adjoined it on the west; both lots fronted on Railroad Avenue.
About this time, Johnson and’ Boswell erected the first story of a stone building upon lot seven, covering the entire front of the lot; and, in consideration of the erection of the second story by the Lodge, they made to it a ninety-nine year lease of the second story, and of an entry and stairway thereto. The language of the lease is as follows :
"Also demise, set over and lease to the same parties, as a part of said contract and for the same consideration, an entry and stairway on the west side of the said building situated as above described; the said entry and stairway leading from the ground floor and street to said second story. The said entry and stairway to be of the width of four feet.”
This lease was not acknowledged, but it was delivered to the register of deeds, and was by him recorded on November 3, 1880. The Lodge shortly afterward constructed the second story and placed its stairway on the outside of the building, over and upon a portion of the adjoining lot eight, which up to that time was a vacant lot. After the construction of said building and stairway — on March 4, 1881 — Boswell by a quitclaim deed conveyed his interest in lots seven and eight to Richards, and on March 12, 1881, Richards and Johnson by quitclaim deed conveyed their interest in lots seven and eight to Frost. On February 23, 1882, Frost and wife by warranty deed conveyed lot seven, except the west half of the west wall of the building thereon, to Pratt, and afterward, in the spring of 1882, by warranty deed conveyed lot eight to Pratt. On May 23, 1883, Pratt and wife, by warranty deed, conveyed lot eight to Guild.
On May 29, 1891, Frost and wife by warranty deed conveyed to Guild the west half of the west wall of the building on lot seven. At the commencement of this action, the Lodge was the owner of lot seven and the building thereon.
The stairway erected by the Lodge commenced about twenty feet south of the street, and extended upward and southward to a door through the wall of the second story near the south end of the building. At the top of the stairs was a wide landing extending upon lot eight.
The Lodge continued to use this stairway as a means of access to its lodge room until 1882, when Pratt erected a building on lot eight, covering the entire front of the lot and using the west wall of the building on lot seven as a party wall. In constructing this building, he took away the stairway erected by the Lodge, and in his building he put a stairway, on the side next to lot seven, commencing near the street and with a hallway extending from the top of the stairs, southward, beyond the door, into the second story of the building on lot seven. After the erection of Pratt’s building, the Lodge used his stairs and hallway as a means of access to its lodge room, and has had no other way of access. It has sublet its lodge room to other societies, and all of them together have used the stairway and hall an average of two evenings in each week.
At the time of Guild’s purchase of lot eight, he did not know that the Lodge used, or claimed the right to use, the stairway and hall in the building thereon. Up to the time of his purchase he resided in the East. While Guild was making an extended visit at his farm, he was induced to purchase lot eight. At the time of purchase, he says, he looked the building over on the outside and saw the inside of the lower story; about two months afterward he visited the building to collect rent, and then went upstairs and saw the doorway into the other building, and he was then told that the stairway was used as a means of access to the lodge room over lot seven. He did not learn that the Lodge claimed the right to use it, until the spring of 1889, when he was informed for the first time that the Lodge claimed the right to use the stairway under the lease set up in this action.
Some of the trustees of the Lodge testified that they understood Guild to' state ‘ ‘ that the time when he went upstairs and saw the door into the other building was before he purchased lot eightbut both Guild and his son testify that ‘ ‘ this visit to the upper story of the building took place afterward, when he went there to collect rent,” and that Guild so stated to the trustees.
When Pratt erected the building on lot eight, the Lodge contributed towards the erection of the stairway under an arrangement that “he was to build that stairway, and finish and plaster the walls leading to the doorway, and was to give the Lodge the use of it.”
The plaintiff in error relies upon the lease for its rights in the stairway on lot eight. The petition alleges no other basis of claim to the stairway in question than the written lease. No oral contract, agreement, or right by prescription is alleged. The original stairway is alleged to have been constructed by the Lodge “by the terms of said written lease,” and the stairway “subsequently” erected in the building on lot eight, is alleged to have been constructed by Pratt “in accordance with the terms of said lease.” The Lodge’s possession or use of the present stairway is alleged to have been “for the purposes mentioned in said lease.” The defendant in error, in its brief, says:
“The defendant in error relies upon the contract set out in its petition, for its right to an easement over the east four feet of lot eight, upon the stairway there erected, as a means of access to and from its lodge room and to and from Railroad Avenue.”
The Lodge cannot recover in this action unless the written lease gives it the rights it contends for. It cannot prevail upon another contract than the written lease. The lease does not in terms give any rights in and to lot eight. The leased premises are stated to be on lot seven, and lot eight is not mentioned. Even in describing the location of the entry and stairway, it adds, “situated as above described.” If this refers to the building, and not to the entry and stairway, it is a senseless repetition. If the parties are given credit for using language with any purpose, they must have meant that the entry and stairway were to be situated on lot seven.
The stairway is described as a “ stairway leading from the ground floor . . . to said second story.” The only building, and consequently the only “ ground floor ” then contemplated, was on lot seven.
By the terms of the lease there was leased an “ entry . . . leading from the street.” According to Webster, an entry is “ a passage leading into a house or other building or to a room ; a vestibule.” A passage is defined as “a common avenue to various apartments in a building; a hall; a corridor.” Under this lease, the Lodge was entitled to a covered and inclosed entry hall, or vestibule, upon lot seven for an entrance to the lodge room.
The written instrument was a lease of an entry and stairway, and not a mere easement over, or right to use and occupy, them with other occupants of the premises. By the terms of the lease, the Lodge’s right to the exclusive use of the entry and stairway is as certain and absolute as its right to the exclusive use of the second story of the building on lot seven. Under the lease, the Lodge has the exclusive right to the entry and stairway on lot eight, or else has no right whatever on that lot. It is unreasonable to presume that the parties to the lease intended, without saying so, to have it convey such an important interest in lot eight. Even if the written lease could be construed according to the Lodge’s contention, the Lodge must fail in this action, because Guild was an innocent bona fide purchaser of lot eight, and had no notice of the existence of such lease. It was not acknowledged, and hence the writing of it in the books of record by the register of deeds does not give notice to any one who does not actually see it.
In Sanford v. Weeks ( 38 Kan. 324 ), the court says : "As the written contract of December 8, 1879, was not acknowledged, its being filed for record did not impart notice, etc.”
But the Lodge says, "the building was so constructed that Guild was bound to take notice.” We submit that Guild was not bound to inspect the building on lot seven to see if there was an inside or back stairway to the second floor of the building. He was purchasing lot eight, and the building thereon. He visited the first floor and saw that a stairway on lot eight led to the second floor. There was apparently no occasion for further inquiry. Even had he made the inspection the Lodge claims he ought to have made, he would not have discovered that the Lodge claimed the right to use his stairs and hallway by reason of the lease set up. The lease does not in terms give any right in lot eight. Whatever the fact was about the contract with Pratt, it could not now affect Guild’s rights. The law has provided the means by which an owner of an interest in real estate can give notice of his rights. To allow such "arrangement” as the one now contended for by the Lodge to be successfully asserted against "bona fide purchasers without notice,” would intro duce into real-estate transactions an unnecessary-element of uncertainty, and would open the door to numberless contentions and fraud. No purchaser could know with certainty that he was getting what he paid for.
The judgment of the trial court is against the evidence. The court erred in overruling the motion for a new trial. The judgment is reversed, with direction to the trial court to sustain the motion for a new trial.
|
[
113,
123,
-40,
-51,
26,
100,
14,
-72,
96,
-56,
37,
95,
-55,
-104,
65,
33,
-9,
125,
81,
103,
-30,
-77,
87,
-118,
-14,
-13,
-13,
-59,
-71,
76,
-11,
87,
74,
1,
74,
21,
-122,
-128,
75,
-36,
-116,
-91,
57,
-24,
-39,
0,
52,
-37,
36,
14,
81,
62,
-13,
36,
88,
65,
100,
104,
-49,
-83,
81,
-71,
-10,
84,
111,
23,
-127,
34,
-100,
-59,
-56,
28,
-112,
53,
18,
-40,
115,
-76,
-57,
108,
7,
-39,
76,
38,
102,
98,
-107,
-17,
-128,
-108,
15,
18,
-99,
-93,
-126,
24,
114,
40,
-68,
29,
117,
48,
39,
126,
-26,
-111,
25,
108,
-127,
-117,
-42,
-107,
-113,
56,
-105,
7,
-5,
-121,
50,
112,
-120,
6,
126,
102,
114,
-105,
-113,
-23
] |
Milton, J.
The defendant C. E. Wightman, for a number of years, had conducted a bank, known as the Bank of Tribune, which was owned entirely by him. Being insolvent, he appeared before the Bank Commissioner at To.peka on September 23, 1896, and stated that he had come for the purpose of surrendering to the Commissioner the possession of the Bank, and that he desired that the Commissioner should go immediately to Tribune and take actual and personal possession of the Bank and all of its assets. Wight-man then gave to the Commissioner a statement of the financial condition of the Bank, showing its insolvency, and, as the Commissioner testified, delivered and surrendered possession of said Bank to the latter so far as it was possible for him to do. On September 24, and while Wightman was in Topeka conferring with the Commissioner, the plaintiff in error brought an action in the District Court of Greeley County to recover $594.06, which he alleged he had on deposit in the Bank. An attachment order was issued at the commencement of the action, and the sheriff purported to levy the same at fifteen minutes past three o'clock on the afternoon of the same day. The sheriff's return on this order shows that at the time named he executed the order by going to the place where certain personal property of the defendant was found — naming among other articles a burglar-proof safe and all its contents — and there declaring that he attached said property at the suit of plaintiff.'
The return of the sheriff as to the inventory and appraisement of the property is regular in all respects except that it shows an appraisement of the safe and its contents, when, as a matter of fact, the safe had not been and could not be opened by the sheriff when the appraisement was made. The appraisement did not state the nature of the contents of the safe, and both were appraised together at seven hundred dollars. The'appraisement is dated September 28, and it was filed, together with the order of attachment, on October 3. The sheriff and appraisers obtained their information as to the contents of the safe from Wight-man.
Before the attachment was levied, the attorney for the plaintiff had knowledge of the fact that Wightman had gone to Topeka to turn the Bank over to the Commissioner, but the evidence does not show whether or not the plaintiff had such knowledge. Wightman returned to Tribune on the morning of September 25, and the Commissioner arrived there at noon the same day. The sheriff or his deputy had remained in charge of the attached property and in control of all the property of the Bank from the time the levy was made, and the Commissioner was unable to take actual possession of the same.
Before starting for Topeka, Wightman left the following notice with a person in Tribune :
“Tribune, Kan., September 23, 1896.
“This bank has been placed in the hands of the Bank Commissioner, who will take charge, probably, Friday. I will return with him.
C. E. Wightman.”
This notice was posted on the door of the Bank soon after the sheriff took possession under the writ of attachment. The Bank Commissioner testified that he made a demand upon the sheriff for the possession of the property, and that, if he had not been prevented by the sheriff, would have taken possession of all the notes, books, moneys and all other property of the Bank that was contained in the safe at that time. The property which was attached consisted of various articles of office furniture, and the safe and its contents.
AJ the request of the Bank Commissioner, the Attorney General, on October 2, 1896, instituted an action in the District Court of Greeley County, in the name of the State on relation of the Attorney General, as plaintiff, against C. E. Wightman, as the owner of the Bank of Tribune, for the purpose of procuring the appointment of a receiver of the Bank and for the winding up of its affairs under the provisions of the Banking Law. On October 5, the plaintiff and four other attaching creditors jointly applied to the judge of the District Court, at chambers, for the appointment of a receiver to take charge of the attached property, and on the same day the State of Kansas, by the Attorney General, presented to said judge a motion for the discharge of the several attachments which had been levied upon the bank property. • These motions were considered together, and the evidence relating thereto was presented on the same day. The motion to discharge the attachment set forth substantially that no sufficient levy of any of the writs of attachment had been made; that none of the writs had been levied on the 25th day of September, when the Bank Commissioner demanded possession of the property ; that all of the property attached was owned by the defendant Wightman in connection with the Bank of Tribune, and constituted a part of the assets of the Bank, which was insolvent at the time of the pretended levy of the writs and prior thereto ; that said property was in the hands of the Bank Commissioner at the time of the levy of the writs; and that a suit had been commenced in the District Court of Greeley County by the Attorney General to have a receiver appointed to wind up the affairs of said Bank.
The foregoing facts were developed on the hearing, and the additional fact was developed that the Bank of Tribune had never obtained authority from the banking department'to do business, although it had been making reports regularly for two or three years. The judge discharged the attachments and ordered the sheriff to turn over the property to C. H. Adams, whom he then and there appointed receiver in the case brought by the Attorney General. Plaintiff in error excepted to the action of the judge, and, by due and timely proceedings, the order discharging the attachment is before us for review.
It is claimed on the part of the State that the case-made is insufficient because it fails to show that it contains all the evidence that was introduced on the hearing of the motion. While it is true that no single specific statement to this effect is made, we think the case-made shows that all the evidence is contained therein. It is also claimed that the case-made is insufficient because it does not contain the attachment undertaking. This is not material, as we must presume that the clerk of the court complied with the law in respect to the issuance of the order of attachment. The appraisement seems to be regular except as to the contents of the safe, and it is not important that it was not completed until several days after the levy was made.
Two questions are presented : First, was the Bank of Tribune in the hands of the Bank Commissioner at the time of the levy ? Second, was the levy valid and sufficient ?
I. As to the first question, we think it could not be claimed by any one that the Bank Commissioner was given actual personal possession of the property by virtue of the attempted delivery thereof made by Wightman in the city of Topeka. Nor do we see how it could be maintained that there was a constructive delivery of the bank property at that time and place. In fact, the Attorney General does not make this contention in his brief. We think that the words “ take charge,” as used in section 26 of chapter 43, Laws of 1891, are to be understood in the ordinary sense, that is, that the Commissioner shall take actual charge of the bank by going to the institution and there assuming'control. We are strengthened in this view by reason of the fact that the Banking Law of 1897, which repeals said chapter 43, makes it the duty of the Commissioner immediately to take charge of a bank when it shall appear to be insolvent, and upon taking charge to ascertain as soon as possible, by thorough examination into its affairs, its actual condition, and, if thus convinced that such bank cannot resume business or liquidate its indebtedness to the satisfaction of all its creditors, to report the fact of its insolvency to the Attorney General, who shall thereupon immediately institute the proper proceedings for the appointment of a receiver. It is evident that “take charge” and “taking charge,” as used in this law, have the meaning we have above indicated, as it would be impossible for the Bank Commissioner to examine into the affairs of an insolvent bank without having control of its books and prop erty generally. Section 29 of the law of 1897 provides another method for placing the affairs and assets of a bank under the control of the Bank Commissioner, that is, by posting on its front door the following notice : “ This bank is in the hands of the State Bank Commissioner.” Said section further provides, that “ the posting of such notice or the taking possession of any bank by the Bank Commissioner shall be sufficient to place all its assets and property of whatever nature in the possession of the Bank Commissioner and shall operate as a bar to any attachment proceedings.”
It is contended by the Attorney General that, under the Banking Law of 1891, the property in controversy was not subject to attachment at the instance of the Bank's creditors, and that the general attachment laws are suspended whenever the same are inconsistent, or in conflict with, the said Act. It will be proper to bear in mind that this Bank was not authorized to do business, and that any general doctrine as to public policy in respect to authorized banks would not be applicable to the Bank in question. Hence we think the decision of the Supreme Court of California in Crane v. Pacific Bank (106 Cal. 64, 39 Pac. Rep. 215), which is cited by the Attorney General, is not applicable to this case.. In view of the fact that the last Banking Act provides that the posting of the notice above set forth shall operate as a bar to attachment proceedings, the conclusion seems proper that the Legislature did not hold that considerations of public policy under the old law would be sufficient to bar attachment proceedings, and therefore the old law was amended in that respect. The Supreme Court of Nebraska, in the case of Arnold v. Weimer (40 Neb. 216, 58 N. W. Rep. 709), holds that the property .of an insolvent bank, prior to the ap pointment of a receiver therefor under the banking law of that State, is not exempt from seizure by attachment or other legal process at the suit of its creditors, and that the lien acquired by the levy of an attachment upon its property is not vacated by the subsequent appointment of a receiver for such bank. We hold that the bank property was subject to levy under an order of attachment at the time when the levy was made in this case.
Again, it is doubtful if the Bank of Tribune came within the terms of section 26 of chapter 43, Laws of 1891, which provides for the appointment of a receiver for an insolvent bank in an action by the Attorney General. Section 17 of said chapter evidently attempted to make it unlawful to conduct a banking business without having procured authority from the Bank Commissioner to do so, but the section is incomplete and makes it unlawful to conduct such a business unless reports are made to the Commissioner. It also provides that the Commissioner shall make examinations of banks and, if they are found in proper condition, he shall issue a certificate of authority to do a banking business. It is not a strained construction of the provisions of said chapter 43 to hold that it contemplates that banks which are brought within the provisions thereof by the examination and the certificate of authority are such as can be taken charge of by the Commissioner and for which a receiver can be appointed under this law. It is anomalous to speak of a receiver being appointed, at the suit of the State, for the property of an individual; but if such an individual is a banker, of course a receiver may be appointed under a law providing therefor. But if he was not authorized to conduct a bank, would it be within the purview.of the law to say that a receiver could be appointed for his property simply because he purported to conduct a bank, and without any authority therefor? As the Banking Law of 1897 covers the question here raised, by making'it unlawful to conduct a banking business without a certificate of authority from the Bank Commissioner, the question we have for consideration becomes comparatively unimportant. In our opinion, it is extremely doubtful if any jurisdiction over the assets of the "Bank of Tribune” — Wightman — was acquired by the court in the action brought by the Attorney General.
II. The record shows that the sheriff complied with the provisions of the statutes in making the levy, except as to the contents'of the safe. He was in actual possession of the office furniture and of the safe on September 28, when the appraisement was completed. The Attorney General claims that this levy is invalid for the reason that manual possession by the officer is essential to a valid levy, and that no such possession had been taken of the contents of the safe. The courts have generally held that the test of a valid attachment levy is this : Were the acts of the officer in making the levy such as would subject him to an action for trespass but for the protection of the process? The officer in attaching personal property must reduce it to actual possession so far as, under the circumstances, can be done. What is such an actual possession, must depend upon the nature and situation of the property. It .has been repeatedly held by the courts that personal property may be attached without the officer touching it; but he must obtain actual control of the property levied upon.
In Lyeth v. Griffis (44 Kan. 161), the court says, " The rule, that the first duty of an officer holding a writ of attachment is to obtain and retain the possession of the property, rests upon reason as well as upon authority,” and quotes the following from a decision, of the Supreme Court of Iowa : “To constitute a valid levy of a writ of attachment, the officer having the writ must do that which amounts to a change of the possession of the property, or something which is equivalent to a • claim of dominion, coupled with the power to exercise it.” In the case cited the court was construing section 32 of the Justices’ Code, which provides that “when property can be come at,” the same shall be taken into custody by the officer and held subject to the order of the justice of the peace. It will be observed that section 197 of the Code, which provides how an order of attachment shall be executed, does not contain the provision referred to above. Taking its language literally, a levy under an order of attachment would be valid if the sheriff should go to the place where the goods of the defendant are, and there declare that by virtue of said order he attaches such goods ; but of course it would be necessary for him to remain in possession of the attached property and to cause -the same to be appraised. Section 199 provides that the officer shall deliver possession of the property attached, to the person in whose possession it was found, upon the execution by such person of a proper forthcoming bond. The inference is plain, that custody or control of the seized goods by the officer, to the exclusion of others, following the statutory declaration made in the place where the goods are found, is the true test of the validity of an attachment levy. If the property was subject to attachment, it was certainly levied on and has remained in the possession'of the sheriff. Neither the Bank Commissioner nor the receiver has ever obtained control thereof. The appraisement of the attached goods was proper, except as to the contents of the safe. The sheriff might have taken manual possession of the contents by the use of great force in breaking open the safe, or he might have had it opened by an expert. This could have been done by virtue of the authority the sheriff possessed under the order of attachment and under the levy. See United States v. Graff, 67 Barb. 304. He would very likely have had the safe opened in some way but for the fact that the Bank Commissioner was claiming certain rights as to the property and the fact that the suit by the Attorney General was to be brought, and was brought, so soon after the appraisement was returned. The sheriff performed his duty as he understood it.
While we think it was not proper to have made the return show an appraisement of the contents of the unopened safe, yet it amounts to an assertion on his part of exclusive custody of the attached property, including the contents of the safe. Holding, as we do, the view that the levy substantially complied with the law and that it gave the sheriff custody and control over the property seized, it follows that the order discharging the attachment was erroneous, and that the receiver appointed by the trial judge in the action brought by the Attorney General has no authority over the attached property. The action of the sheriff in making an incomplete appraisement can be corrected by the issuing of an alias order of attachment, it being evident that plaintiff in error ought not to lose his rights by reason of the incompleteness of the appraisement.
The order of the trial judge will be reversed, and the case remanded with instruction to the trial court, or the judge thereof, to order the sheriff to open the safe and complete the appraisement, upon an alias order of attachment; and for further proper proceedings.
|
[
-16,
96,
-8,
31,
58,
-32,
42,
-70,
99,
-127,
39,
51,
-23,
-50,
21,
105,
-42,
111,
-11,
104,
-28,
-109,
63,
-85,
-46,
-77,
17,
-43,
-79,
95,
-92,
-11,
76,
48,
-54,
29,
70,
-128,
-61,
92,
78,
-127,
56,
-63,
81,
72,
48,
-5,
52,
74,
113,
-98,
-13,
34,
26,
-50,
73,
46,
-53,
-67,
112,
-79,
-85,
69,
79,
23,
33,
2,
-100,
7,
-48,
46,
-112,
59,
1,
-88,
112,
54,
-122,
116,
111,
-55,
-120,
102,
98,
32,
117,
-49,
-92,
-119,
46,
-77,
-97,
-90,
-108,
72,
67,
47,
-98,
-99,
103,
16,
2,
-4,
-25,
12,
29,
108,
19,
-50,
-44,
-109,
-115,
60,
-104,
27,
-33,
3,
52,
112,
-114,
-28,
93,
22,
58,
27,
-114,
-11
] |
Dennison, P. J.
Anna S. Readhead and others commenced an action in the District Court of Crawford County, Kansas, against George W. Mosteller, and procured an order of attachment to be issued, which was levied upon the northeast quarter of the northeast quarter of section 13, in township 29 south, of range 23 east, in Crawford County, Kansas. The grounds for the attachment are that the defendant, Mosteller, is a non-resident of the State of Kansas and is about to assign, remove and dispose of his property or a part thereof with the intent to defraud, delay and hinder his creditors. The defendant below filed a motion to set aside and discharge the attachment for the reason that the allegations contained in the affidavit are untrue. It is also claimed that the property levied upon is the homestead of Mosteller and his family. Affidavits were read in support of the motion, and counter affidavits were read resisting the motion. The court overruled the motion and sustained the attachment. Mosteller brings the case here for review, and alleges that the court erred in overruling the motion to discharge the attachment and in holding the land liable for the payment of the defendant in error’s judgment.
The motion was heard and submitted wholly upon affidavits, and we are asked to review the facts and determine whether the preponderance of the evidence supports the findings of the court. The evidence is conflicting upon most of the facts, but we think it can be said that the uncontradicted evidence establishes the fact that Mos’teller moved his family to California, that he tried to sell his farm in Crawford County, Kansas, and that he became a voter and voted in California.
These undisputed facts, together with the showing made by the conflicting evidence, are, we think, sufficient to warrant the conclusion that Mosteller was a non-resident of Kansas and was a resident of California, and that he had abandoned the farm levied upon, as his homestead.
The judgment of the District Court is affirmed.
|
[
-16,
108,
-8,
13,
-88,
-96,
34,
-70,
89,
-93,
37,
83,
-23,
-54,
5,
105,
-29,
61,
81,
120,
-62,
-77,
87,
-31,
-10,
-13,
-119,
-43,
-13,
73,
-28,
-41,
77,
32,
74,
53,
-122,
-94,
-123,
28,
-116,
5,
-87,
-48,
-45,
-64,
52,
-17,
38,
74,
113,
62,
-13,
42,
61,
-45,
9,
44,
-17,
41,
-64,
-15,
-65,
4,
127,
18,
-128,
6,
-110,
7,
-56,
-86,
-104,
49,
0,
-24,
115,
54,
-126,
116,
3,
-119,
-88,
102,
98,
49,
-99,
-82,
-68,
-120,
15,
119,
13,
-26,
-112,
88,
67,
40,
-66,
-99,
117,
112,
7,
-2,
-28,
-123,
29,
108,
-121,
-57,
-10,
-109,
15,
112,
14,
-121,
-21,
-91,
20,
113,
-55,
-94,
92,
71,
16,
-69,
-114,
-77
] |
Dennison, P. J.
This is an action upon an undertaking in appeal, brought in the District Court of Montgomery County, Kansas. The plaintiff in error sued one Sydney Sparks in justice’s court, and recovered a judgment of twenty-five dollars and costs. Sparks filed an undertaking in justice’s court in due form in the sum of sixty dollars, which was signed by the defendants in error herein as sureties. The undertaking was duly approved by the justice and the case sent to the district court. Judgment was rendered therein against Sparks for the sum of $28.75, with interest until paid, and costs amounting to the sum of $279.10 exclusive of the fees of Sparks’s witnesses. The judgment and costs remaining unpaid, an execution was issued and returned unsatisfied. This action was thereupon commenced by Shockman against these defendants in error to recover from them the judgment, interest and costs, amounting to $320.15 exclusive of Sparks’s witnesses. Judgment was rendered in the District Court in favor of said Shockman against these defendants in error as such bondsmen, in the sum of $60 and $14.25 costs. Shockman brings the case here for review and asks us to decide the one question, Are the bondsmen who sign a statutory appeal bond in justice’s court, liable for the whole amount of the judgment and costs rendered in the district court, provided they exceed the sum nominated in the bond? The statute requires :
“The party appealing shall, within ten days from the rendition of judgment, enter into an undertaking to the adverse party with at least one good and sufficient surety, to be approved by such justice, in a sum not less than fifty dollars in any case, nor less than, double- the amount of the judgment and costs, conditioned : First, that the appellant will prosecute the appeal to effect and without unnecessary delay ; and, second, that if judgment be rendered against him on the appeal, he will satisfy such judgment and costs ; said undertaking need not be signed by the appellant,” etc. ¶ 4973, Gen. Stat. 1889.
The liability of the surety is fixed by paragraph 4979, sv/prar, which reads as follows :
"When any appeal shall be dismissed, or when judgment shall be entered in the district court against the appellant, the surety in the undertaking shall be liable to the appellee for the whole amount of the debt, costs and damages recovered against the appellant.”
In construing these two sections of the Code, we decide that the sureties are liable for the whole amount of the debt, costs and damages, provided the same does not exceed the amount nominated in the undertaking. This construction gives force and effect to each and every Svord in the two sections, and also to section 131 (¶ 4981, supra), which reads as follows :
" In proceedings on appeal, when the surety in the undertaking shall be insufficient, or such undertaking may be insufficient in form or amount, it shall be lawful for the court, on motion, to order a change or renewal of such undertaking-, and direct that the same be certified to the justice from whose judgment the appeal was taken, or that it be filed in said court.”
The party appealing shall give an undertaking in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs. The sureties shall be liable for the whole amount of the debt, costs and damages recovered against the appellant. When the undertaking shall be insufficient-in form or amount, it shall be lawful for the court, on motion, to order a change or renewal’ of such undertaking.
These are the requirements of the statute. It was the duty of the attorney for the plaintiff in error, to file with the court a motion for an increase in the amount of the bond, when he found that sixty dollars was insufficient to cover the amount of the debt and the accrued and accruing costs.
If the contention of the plaintiff in error is correct, that the sureties are liable in excess of the sum named in the bond, why should the statute provide for any amount of bond to be given, or why should the court be given power to order a change in the amount of such bond? These provisions would be useless and absurd. The Legislature evidently recognized the fact that the sureties were liable for only the amount named in the undertaking, and provided a means whereby the appellee may protect himself if the bond is insufficient in amount. “A statute should be so construed that effect be given if possible to every clause and section of it.-” Bridge Co. v. K. P. Rly. Co., 12 Kan. 413.
The judgment of the District Courkis affirmed.
|
[
-48,
104,
-72,
124,
-118,
96,
42,
-112,
99,
-103,
119,
83,
-87,
-62,
5,
107,
-43,
125,
101,
122,
89,
-73,
23,
65,
-46,
-13,
-111,
-59,
49,
77,
-10,
-43,
76,
112,
90,
21,
-58,
-118,
-59,
88,
-50,
-123,
-87,
-32,
-39,
64,
48,
127,
54,
2,
49,
-98,
-5,
34,
24,
-30,
76,
58,
-21,
-87,
-63,
-79,
-127,
77,
127,
20,
-95,
7,
-108,
7,
88,
62,
-108,
-67,
1,
-24,
114,
-90,
-122,
-12,
41,
27,
-116,
102,
98,
49,
21,
-29,
-71,
-68,
15,
-14,
-113,
-89,
-109,
88,
11,
13,
-106,
-99,
117,
53,
7,
-4,
-20,
5,
28,
108,
-125,
-37,
-112,
-111,
-115,
54,
-112,
-99,
-1,
-92,
112,
113,
-51,
-30,
94,
102,
18,
-97,
-113,
-65
] |
Schoonover, J.
Mary Herbert, plaintiff below* commenced an action in' the District Court of Chero-v kee County against the City of Weir, to recover damages for injuries alleged to have been sustained by reason of a defective sidewalk. The case was tried to a jury, verdict returned, and judgment rendered in favor of plaintiff below for five hundred dollars. The defendant below brings the case here for review.
The first assignment of error complained of by counsel for plaintiff in error in their brief is, that, the trial court erred in refusing to submit to the jury the special question : “Was such fall an accident ? ’ ’ From the special findings, it may be stated that the City of Weir was a city of the second class, and that B. S. Abbott was its mayor, and James Hatton, street commissioner; that the sidewalk on F Street, where plaintiff fell and where she received the injury com-, plained of, had not been repaired before the injury; that there was a loose board in the sidewalk prior to the date of the injury — May 29,1890, —and that the officers of the City of Weir, the mayor, city clerk, and street commissioner, knew of this defect during the months of April and May prior to the date of the injury; that the officers of the City of Weir had no actual notice ; that they obtained the information or notice of the loose boards by observation when walking over it; that there was a loose board in the sidewalk at the place where plaintiff fell, for three months prior to the date of the injury, and that the City of Weir, by the use of reasonable care and diligence, could have ascertained the loosened condition of the board.
The court instructed the j ury as follows :
“The term negligence is defined to be want of due care, or the failure to do that which under the law and circumstances is required. It is the duty of cities organised under the laws of this State to keep the streets and sidewalks in a reasonably safe and suitable condition of repair for the public to travel over the same at will.
‘ ‘ The first question that presents itself is whether or not the City in that particular has performed its duty to the public. If it has, then the plaintiff cannot recover in this action, although you may find that she has sustained injuries. The cause must then be attributed to accident, and for matters of accident the City is not responsible.
“ She must also prove that the sidewalk was out of repair at the time she claims she sustained these injuries, and that that fact was known to the City, or was known to the officers of the City charged with the duty of keeping it in repair ; but that knowledge need not be actual knowledge, for if, from the evidence in this case, you find that sidewalk was not in a suitable condition so as to be reasonably safe at the time that the plaintiff passed over it and sustained the injuries, if she sustained any injuries, and that condition had existed for a period of time sufficiently long that the officers of the City charged with the care and control of the streets and sidewalks could by reasonable observation have ascertained that fact, then the City is charged with knowledge.
“ But if you find that the sidewalk was out of repair and was in a condition so as to be unsafe to travel, but that that condition did not exist for a period of time sufficient to charge the officers charged with the duty of keeping it in repair with knowledge of its condition, and they did not have any actual knowledge that that condition existed, then I say to you that the plaintiff cannot recover in this action and your verdict should be for the defendant, although you may be satisfied from the evidence that she sustained injuries upon that occasion ;' for then her condition must be attributed to accident, and not to negligence. Negligence on the part of the City is the main fact to be established before the plaintiff can recover in this action. If the City was not negligent, then the plaintiff cannot recover in this action.”
In this and other instructions given by the court, the jury were carefully informed “ that negligence on the part of the City is the main fact to be established before the plaintiff can recover in this action.”
It. was not claimed that the plaintiff below was guilty of contributory negligence. The issue made was fairly submitted to the jury, upon proper instructions ; and answers to all special questions of fact pertinent to the issue, which could be answered fairly upon the evidence without confusing the jury, were required by the trial court. A. T. & S. F. Rld. Co. v. Butler, 56 Kan. 438.
It will not be contended that the plaintiff below intended to fall; so far as she was concerned, it was unexpected and we may say accidental. This is not the question to be determined, and it was not error for the trial court to refuse to submit the special question, “Was such fall accidental ? ”
In view of the special questions submitted and the manner in which, the trial court used the word ‘ ‘ accident ” in the instructions, it would tend to confuse the jury. “A party has a right in a jury trial to have answers returned to specific questions as to material facts, and a denial of this right is error. What is a material fact, is a question to be determined by the court.” City of Wyandotte v. Gibson, Adm’x, 25 Kan. 236.
Where the special question is not pertinent to one of the “issuable and principal facts, but runs to one of the minor and subdivided facts into which the principal fact may be resolved,” and cannot be fairly answered without confusing the jury, it is the duty of the trial court to refuse to submit it.
It is also contended that the trial court erred in overruling the motion of the defendant below to set aside the special findings returned by the jury. There was some competent evidence submitted to the jury upon each question answered by them. Their findings and verdict have been approved by the trial court, and the judgment will not be disturbed.
The judgment of the District Court will be affirmed.
|
[
-48,
104,
-104,
-17,
-6,
96,
58,
-118,
73,
-107,
-27,
123,
-17,
-123,
9,
113,
47,
125,
-47,
107,
-29,
-93,
15,
-126,
-110,
-109,
-77,
7,
51,
-18,
116,
-9,
76,
48,
-53,
-99,
-58,
67,
-51,
-34,
6,
-126,
8,
-23,
-39,
66,
56,
123,
32,
12,
113,
30,
-13,
46,
60,
103,
-20,
40,
73,
61,
-13,
-79,
-56,
5,
127,
6,
-96,
118,
-68,
-125,
-54,
8,
-104,
53,
16,
-8,
114,
-74,
-125,
-43,
101,
-101,
12,
98,
102,
33,
29,
-25,
-71,
-72,
46,
126,
-83,
-92,
-113,
41,
89,
35,
-65,
-99,
85,
80,
6,
122,
-17,
-43,
93,
104,
7,
-122,
-16,
-71,
-49,
-92,
20,
3,
-33,
-117,
52,
113,
-52,
-8,
93,
-123,
51,
27,
-97,
-119
] |
Mahan, P. J.
There are but two questions in this case. The justness of the cause of action does not seem to be seriously disputed, but the Statute of Limitations is relied upon as a defense. The plaintiff relied upon section 23 of the Code to save him from the bar of the statute. He had brought an action before a justice of the peace for the same claim, and obtained judgment. The defendant had appealed to the District Court, where the plaintiff again obtained judgment. Error was prosecuted in the Supreme Court, and the judgment reversed for the reason that the justice in the first instance had no jurisdiction of the case because the amount was in excess of his jurisdiction, and hence the appeal conferred none upon the District Court. For this reason the judgment was reversed with direction to the District Court to dismiss the case.
This action was begun within a year after that reversal; but the plaintiff in error contends that because the judgment was reversed for want of jurisdiction, therefore, there was no action to toll the statute. We are of the opinion that this contention cannot be sustained. The statute says that if the action be commenced within due time and the plaintiff obtain judgment and ° . the judgment be reversed — without regard to the grounds of reversal — he shall have a year thereafter in which to bring a new action. The statute further provides that if the action fail otherwise than upon the merits it may again be commenced. The Supreme Court in construing this part of the statute, in McWhirt v. McKee (6 Kan. 412), holds that the court will not inquire why the action was dismissed; that if it was dismissed it fails, and the failure is otherwise than upon the merits'; indicating that the court considered that the statute should be liberally construed, or, at least, that its language should be given its full import.
There was an action commenced, there was a judgment rendered, and that judgment was reversed at the instance of the plaintiff in error in this case ; this brings the case strictly within the very terms of the statute. To paraphrase the language of Chief Justice Kingman in the case last cited, it is immaterial to this court why the judgment was reversed, and we will not inquire why it was reversed.
The case is also within the second provision of section 23. The action failed otherwise than upon its merits. It was dismissed. See Seaton v. Hixon, 35 Kan. 663; Hall v. Hurd, 40 id. 374. It was contended in the latter case that because there was no cause of action at the time the first action was begun, there was no action — no case. It will not do to say there was no case in the court, no action begun, no judgment, simply because the court of last resort held that there was no jurisdiction. Giving to the statute that construction to which it is entitled, it seems clear that the case comes within the provision of section 23, and that the pendency of that suit, even though the court had no jurisdiction of the cause of action, tolled the Statute of Limitations and brought it within the saving clause.
The second contention is, that the court erred in submitting to the jury the questions whether the cause of action sued on in this case was the same cause of action upon which the former suit was brought, and whether the suit brought before had been disposed of prior to the bringing of this suit, because, it is asserted, these are questions of law. They are questions of fact, the same as any other questions of fact in the case upon which the jury might pass, and the court did not err in submitting these questions to the jury together with the other facts in the case.
The judgment is affirmed.
|
[
-46,
-6,
-36,
60,
10,
32,
34,
26,
65,
-95,
-9,
-45,
-19,
-125,
12,
125,
-13,
105,
81,
106,
-49,
-77,
7,
-62,
-10,
-78,
-63,
-43,
-80,
-51,
118,
127,
12,
48,
74,
85,
70,
-118,
-127,
86,
-118,
-106,
41,
76,
-39,
8,
52,
91,
20,
15,
113,
-34,
-18,
43,
24,
75,
105,
40,
-53,
-67,
97,
-80,
-114,
5,
127,
4,
-95,
-89,
-100,
67,
120,
62,
-104,
57,
33,
-24,
114,
-74,
-126,
-12,
105,
-101,
45,
102,
98,
-128,
73,
-17,
-84,
-72,
46,
21,
31,
-90,
-108,
104,
41,
13,
-65,
-99,
101,
52,
4,
124,
-20,
-123,
95,
108,
3,
-118,
-44,
-79,
-17,
116,
-112,
83,
-17,
3,
20,
112,
-34,
-32,
92,
71,
50,
27,
-98,
-35
] |
Dennison, P. J.
This action was for replevin, brought by the defendants in error. Miller and Sankey. were mortgagees in possession. At the conclusion of the plaintiff’s evidence, a demurrer for the reason that two causes of action were improperly joined, was sustained. By leave of court, the action was dismissed as to Sankey. There was no error in this dismissal. The verdict and judgment were for the defendant in error Miller. The plaintiff in error contends that the court erred in receiving the chattel mortgage offered in evidence by Mrs. Miller, and argues three reasons for such error : First, because the mortgage offered was not relevant to any issue made by the pleadings ; second, because the mortgage purported to have been given to Weller and Miller, and there was no assignment of the mortgage to Amanda Miller and no' evidence of a transfer to her of the notes secured by the mortgage ; third, because the mortgage offered showed upon its face that it was fraudulent as to creditors and void.
The first reason is predicated upon the fact' that, while the petition alleges that the plaintiffs below were the absolute owners and entitled to the immediate possession of the property, the mortgage tended to prove a special ownership therein. .The third reason is predicated upon the fact that a clause in the mortgage allowed the mortgagor to retain possession, to sell the goods in the ordinary course of trade, and to apply the proceeds-to the payment of the note secured and in keeping up the stock.
These objections are both overcome by the fact that the plaintiffs below had reduced the goods to possession prior to the levy of the attachment. The question of the possession of the goods by the plaintiffs below was made an issue in the pleadings ; each side introduced evidence upon such issue, and the general finding of the jury, having been approved by the court, settled such issue in favor of Mrs. Miller.
The second objection is overcome by the fact that the mortgage which was introduced in evidence had been renewed by Mrs. Miller as assignee, that the notes and mortgage were in her ° ° possession and a large portion of them had been paid to her, and that she was in possession of the stock under the mortgage.
The plaintiff in error also contends that the court erred in refusing to permit him to introduce in evidence a verified answer of Mr. Sankey filed by him in another case. There was a dispute between Mr. Sankey and the deputy constable as to whether Mrs. Miller and Mr. Sankey were in possession of the stock on the evening of October 23, when the levy was made. The plaintiff in error sought to introduce the answer in evidence as part of the cross-examination of Sankey, claiming that the facts set forth in the answer did. not Correspond with the evidence then being given by him. It might have been proper to have interrogated Mr. Sankey as to whether he had not made different statements in the answer from those he was then making, and then have introduced the answer for the purpose of impeaching his testimony ; but it cannot be seriously contended that the plaintiff in error could have introduced the answer as part of the cross-examination of Mr. Sankey.
There are other assignments of error argued, but when analyzed upon the theory that Mrs. Miller was in possession of the stock at the time of the levy, it appears that no material error was committed.
The judgment of the Court of Common Pleas is affirmed.
|
[
-14,
126,
-56,
-84,
122,
0,
42,
-86,
101,
-124,
39,
-45,
-81,
-58,
16,
37,
-12,
109,
-47,
106,
-43,
-77,
39,
98,
-46,
-77,
-111,
85,
-75,
78,
-11,
-41,
76,
48,
-62,
21,
-58,
-126,
-47,
84,
-50,
-121,
-128,
100,
-7,
66,
112,
-69,
50,
73,
97,
-122,
-29,
37,
53,
79,
104,
42,
-17,
57,
-64,
-8,
-101,
13,
95,
7,
-79,
54,
-34,
67,
-38,
46,
-124,
117,
1,
-88,
114,
-74,
-122,
84,
59,
-101,
1,
98,
98,
2,
5,
-17,
-99,
-88,
46,
126,
13,
-90,
-112,
8,
11,
75,
-73,
-99,
-36,
0,
103,
126,
-2,
-99,
29,
108,
23,
-50,
86,
-109,
-83,
52,
-102,
-125,
-1,
3,
52,
113,
-51,
-80,
92,
103,
26,
59,
-98,
-21
] |
Dennison, P. J.
This action was commenced in the District Court of Cowley County, Kansas, by the Julius Winkelmeyer Brewing Association, as plaintiff, against J. B. Nipp, as defendant. It is alleged in the petition that, on May 9, 1888, the plaintiff entered into a contract to sell to one J. H. Saunders keg and bottled beer and Young’s Extract of Malt, in original packages and in car-load lots, at prices therein stipulated ; that said J. H." Saunders agreed to pay for the same within sixty days after shipping; that J. B. Nipp guaranteed in writing that said Saunders would strictly and promptly perform all the conditions and obligations of the contract. The plaintiff, in compliance with such contract and guaranty, sold and shipped to said Saunders, at Wichita, Kan., six car loads of-beer and Extract of Malt, in original packages, between said ninth day of May and the first day of October, 1888, aggregating in value the sum of $5547.72, and received on account of said sale and shipment, in bottles, boxes and kegs returned and in cash, the aggregate sum of $3957.79. It is also alleged that said J. B. Nipp was a silent partner of said Saunders in the business. A copy of the contract aDd a statement of the account are attached to the petition as exhibits and made part thereof. The amount claimed as remaining due and unpaid is $1589.93 with interest at seven per cent, from July 20, 1888.
The plaintiff filed an amended petition, in which it is alleged that the contract was made in St. Louis, ■Mo., at the place of business of the plaintiff, and that the liquors and malts were sold and delivered to Saunders on Nipp’s guaranty, in the State of Missouri, and that it was lawful to sell such liquors in such manner in Missouri.
It is also alleged that the plaintiff is a citizen of Missouri and that Saunders and Nipp were citizens of Kansas, and that said liquors and malts were sold to said Saunders in original and unbroken packages. It is also alleged that plaintiff did not aid said Saunders and Nipp in any manner in the sale of said liquors and malts, and had no interest whatever in the sale of said liquors and malts in the State of. Kansas. It is also alleged that said malts were not intoxicating. The defendant demurred to the petition and the amendment thereto, upon the ground that they do not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant.
The court sustained the demurrer, and the plaintiff brings the case here for a review of the order of the trial court therein.
The contract reads as follows :
“This agreement, made and entered into this ninth day of May, 1888, between the Julius Winkelmeyer Brewing Association of St. Louis, State of Missouri, vendor, and J.,H. Saunders, doing business under the firm name and style of J. H. Saunders, of the city of Wichita, State of Kansas, herein called vendee —
“Witnesseth: That said parties have agreed and hereby do agree as follows :
“ 1. Said Brewing Association is to sell to said vendee its products, in car-load lots, keg and bottled beer, mixed or separate, at the following prices : Keg beer at $8.40 per barrel; bottled beer at $9.50 per cask of six dozen quarts, $10 per cask of ten dozen pints, $3.90 per case of two dozen quarts ; Young’s Extract of Malt at $10.47 per cask of six dozen quarts or ten dozen pints; allowing for empty bottles returned, forty cents per dozen for quarts and twenty cents per dozen for pints, and for the empty bottled beer cases, seventy cents each; all free on board at Wichita, Kan. ; and said vendee shall be credited only with such a number of empties as said Brewing Association may receive at St. Louis in sound condition.
“2. All freight charges on beer and malt extract are to be paid to the carrier by said vendee, and then, if they do not exceed the present rate of freight, to be by said vendee charged to said Brewing Association. Should the present rates of freight be advanced, then such advance shall fall on said vendee.
“3. All cooperage which may be sent by said Brewing Association to said vendee is to be returned by said vendee to St. Louis, to said Brewing Association, as soon as the same is empty, and in no event later than-— months after its shipment to said vendee ; and if not so returned within said time, then and in that event said Brewing Association may, at its option, declare the value thereof a debt against said vendee at the following prices : $1.25 for each quarter, half or eighth barrel. The freight on all such empty cooperage as may be returned is to. be paid by said Brewing Association.
“4. All goods shall be paid for within sixty days after shipment, and should more than 'three cars be shipped within said time, then and in that event said vendee shall pay for the first car load when ordering said fourth car load, and so on throughout the duration of this contract. This paragraph is to be so construed as not to allow said vendee to be in arrears in payments beyond the price of three car loads 'of goods at any one time.
“5. This contract to be in force for one year from date, during which time said vendee agrees to sell no other beer than that manufactured by said Brewing Association, and said Brewing Association agrees during said period to sell no beer at all in the following territory: [None stipulated.]
"6. All wagons and other property not expressly sold and which may be furnished by said Brewing Association to said vendee, shall remain its property, and same are to be returned to it at the expiration of this agreement in the same condition in which said property was received, usual wear and tear excepted.
"7. Any failure on the part of said vendee to strictly adhere to and comply with the terms and conditions of this agreement, shall, at the option of 'said Brewing Association, work a forfeiture of the unexpired portion of this contract.
"Witness our hands in duplicate, this ninth day of May, 1888.
(Signed) Julius Winkelmeyer Brewing Ass’n. per John Greeks, Traveling Agent.
J. H. Saunders.
"We and each of us hereby guarantee that said vendee will strictly and promptly perform all of the conditions and obligations of the above contract.
May 9, 1888. (Signed) J. B. Nipp.”
.Indorsed on the back is the following:
" Bond and contract of J. H. Saunders with Julius Winkelmeyer Brewing Ass’n. J. B. Nipp, Bondsman.”
It will be seen that the contract is not a sale, but is an agreement or offer to sell in car-load lots. The amount to be sold is to be determined by Saunders,' The fourth paragraph of the contract provides that when he orders the fourth car load he must pay for the first car load. This clearly indicates that the order of Saunders is to be made before liquors are to be shipped to him. When Saunders ordered a car load of liquors, the order was based upon the agreement or offer of the Brewing Association to sell to him, and the sale was to be made to him according to the terms of the contract. It clearly requires an order from Saunders to complete the contract of sale. The contract is an offer to sell upon the terms therein stated. The order is the acceptance of the offer. The contract of sale is therefore complete when Saunders mails a letter or sends a telegram ordering a car load of liquors. The contract of sale is complete but the sale is not. Something more must be done. The liquors must be separated and delivered to Saunders before the sale is completed. It is clear that the separation took place in St. Louis. The delivery is ordinarily made to the purchaser by a delivery to the carrier. Where the purchaser is to pay the freight, the cárrier is his agent. “ The illegality of the , , sa,ie °* intoxicating liquors frequently depends upon the place where the sale is made ; this is governed by the place where the sale is completed by delivery. Where the vendor is to and does pay the freight to the place of delivery, the place of delivery becomes the place of sale.” 11 Am. & Eng. Encyc. of Law, 742, and cases there cited.
“ If by the terms of the contract the seller is required to send or forward the goods to the buyer, the title and risk remain in the seller until the transportation is at an end, after which time the title is vested in the buyer. Bloyd v. M. & J. Pollock, 27 W. Va. 75; Fry & Hartman v. Lucas, 29 Pa. St. 356; Taylor v. Cole, 111 Mass. 363, etc.” 21 Am. & Eng. Encyc. of Law, 477, note.
The freight charges were to be paid by Saunders in the first instance, but were to be charged to the Brewing Company and deducted from the contract price of the liquors. Under a contract and transactions quite similar to these, the Supreme Court of Iowa, in Gipps Brewing Co. v. De France ( 91 Iowa, 108, 58 N. W. Rep. 1087 ), held that the sale was completed by the delivery of the liquors at their destination.
Following these decisions, which we think are founded upon correct principles, we must hold that the sales under the contract in this case were made in Wichita, Kan. It is immaterial where the agreement to sell was made.
It is contended that it is also immaterial where the sale of the liquors was made, as they were sold in original and unbroken packages at a time when this could be legally done, and that the Brewing Company did not in any way aid Saunders and Nipp in the sales of the liquors in Kansas. In support of this contention, the petition alleges that no wagons or other property not expressly sold were furnished to Saunders, nor was it intended or understood that any such property was to be furnished him, and that the sixth paragraph of the contract was a general clause used in contracts in Missouri, and was left in this contract inadvertently and by mutual mistake of all the parties.
The contract clearly shows that the Brewing Com- ' pany was to aid in the sale of the liquor in Kansas. It furnished the barrels for the purpose of assisting Saunders in completing his sales. It also knew that Saunders was not to sell the l1(luors 111 original and unbroken packages. ■ He could not do so, for he. never became the owner of the barrels. The owner ship of them remained in the Brewing Company, and, wThen emptied, they were to be returned to it; and if not so returned, the Brewing Company might, “ at its option, declare the value thereof a debt against the vendee at the following prices : $ 1.25 for each quarter, eighth or half barrel.” In the itemized account attached to and made a part of the petition, the Brewing Company credits Saunders with the return of a large number of such barrels, for which it allows him nothing as their value. Under the allowance’ made for the return of empty bottles and cases as provided for in paragraph one, Saunders is credited with the return of a large number of them, and with over sixteen hundred dollars as their value.
It is contended by the plaintiff in error that the demurrer was wrongfully sustained, for the reason that there is nothing in the petition to show that the liquors were to be, or were, used by Saunders for the purpose of making illegal sales thereof, nor was there anything in the contract to charge the plaintiff in error with notice that Saunders intended to use this liquor for sales in violation of the laws of the State of Kansas.
In discussing this question in their brief, the attorneys for.the defendant in error say :
“In considering this question, we shall consider that from the petition and the contract it will be considered without question that Saunders, when he made the contract in question, was expecting to engage in the illegal sale of intoxicating liquors in this State, and that that fact was known to the plaintiff. While there is no direct averment in the petition to that effect, still the contract itself and the averments of the petition are sufficient for that purpose. The petition nowhere avers that Saunders had, or that it was expected that he should have, a druggist’s permit for the sale of intoxicating liquors for the excepted pur poses, nor is it averred that the liquors were to be sold by Saunders in the original packages ; and therefore we say it sufficiently appears that the use to which the liquors were to be put in this State was illegal, and that the plaintiff knew that fact.”
The contention of the plaintiff in error in this particular must be sustained. It is lawful in Kansas for certain persons to sell liquors for certain excepted purposes. We cannot say, as a matter of law, that a contract for the sale of liquors must recite that the purchaser has obtained, or is to obtain, a druggist's permit to sell the same for the excepted purposes, or that the purchaser is to resell the same in the original packages. Neither is it necessary for the petition to allege these things, in order to avoid a presumption that the liquors were purchased for the purpose of making illegal sales.
There is no allegation in the petition as amended that Saunders resold the liquors unlawfully, or that he bought them for that purpose. In considering the amount of liquors furnished in the four months, and applying the knowledge we have of such matters to the facts as set forth in the petition and contract, we may feel reasonably certain that Saunders purchased these liquors for the purpose of making illegal sales, that he did make illegal sales, that the Brewing Company knew that he purchased them for that purpose and was selling them illegally, and that the Brewing Company intended to, and did, aid him in making such illegal sales. This will not help the defendant in error in this case. In determining whether the court erred in sustaining thé demurrer to the amended petition, we can only decide the legal question as to whether the amended petition states facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant. For the reasons above stated, we hold that it does.
The judgment of the District Court is reversed.
|
[
-15,
-53,
-88,
79,
58,
120,
40,
-102,
41,
-79,
37,
83,
-39,
116,
5,
113,
-25,
125,
113,
120,
-30,
-73,
47,
-16,
-46,
-69,
-47,
-55,
-80,
73,
-59,
-42,
77,
116,
74,
-75,
-42,
-62,
-47,
-100,
-98,
0,
41,
-32,
91,
-64,
-76,
-5,
66,
3,
113,
-90,
-5,
44,
30,
-61,
13,
44,
-3,
27,
-64,
-72,
-77,
-97,
45,
22,
0,
6,
-108,
70,
72,
127,
-110,
-79,
105,
-24,
81,
-76,
70,
-12,
3,
-115,
-120,
98,
103,
34,
-75,
-21,
-84,
-68,
47,
83,
-103,
38,
-79,
72,
67,
-128,
-68,
28,
16,
16,
-125,
122,
-72,
-107,
21,
111,
6,
-121,
-10,
-127,
14,
32,
14,
7,
-1,
-90,
48,
101,
93,
-12,
92,
119,
52,
-101,
-113,
-111
] |
McElroy, J.
This was an action brought by J. W. Higgins against the Board of County Commissioners of Mitchell County. The case came up on appeal from the action of the Board of County Commissioners, and was tried on an agreed statement of facts. The plaintiff claimed for his services as treasurer, for the quarter next preceding the first day of July, 1895, the sum of five hundred dollars, less $4.95 which he had received in fees. The Board of County Commissioners allowed his claim in the sum of $445.05. Upon the trial, the court found for the plaintiff in the sum of $10.55 in addition to the amount allowed by the Board of County Commissioners, for which amount judgment was rendered. The plaintiff filed a motion for a new trial, which was overruled, and he now presents the case to this court for review.
It is agreed by the parties to this action that, if the general Fee and Salary Act was in force, the salary of the county treasurer of Mitchell County was two thousand dollars per annum, or five hundred dollars per quarter. It is further conceded by the parties that the amount allowed the plaintiff by the Iloard of County Commissioners and the trial court is the amount due him under section 1, chapter 140, Laws of 1895, if such Act is constitutional.
The only question presented in this case is as to the constitutionality of chapter 140, Laws of 1895, entitled, "An act regulating the fees and salaries of the county treasurer, county clerk, county attorney, county superintendent, clerk of the district court, sheriff, probate judge, register of deeds, county surveyor and coroner of Mitchell County and prescribing penalties for the violation thereof." The only objections urged against the Act which we deem it necessary to comment upon are two : First, that it is in violation of -that portion of section 16 of article 2 of the State Constitution which reads: "No law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed;" second, that it is in violation of that portion of section 16 of article 2 of the State Constitution which reads : "No bill shall contain more than one subject, which shall be. clearly expressed in its title. ’’
Neither of these positions is’tenable. "No law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed,” was not intended to abolish the doctrine of repeals by implication, nor to reverse the established maxim that where statutes are inconsistent with each other the later repeals the earlier. Comm’rs of Norton County v. Shoemaker, 27 Kan. 77; The State v. Guiney, 55 id. 532. At a very early date in the judicial history of this State, it was held that a special law which was . in conflict with a general law was not for that reason necessarily void. Beach v. Leahy, Treas., 11 Kan. 23.
It is contended that the Act is unconstitutional because the Legislature saw fit to use the word “ regulate,” in the title of the Act, instead of the word “fix.” From an examination of the various acts of our Legislature, we find that it has frequently used the word “fix” and frequently used the word “regíate,” in this class of legislation. Our Supreme Court has held several acts to be constitutional wherein the word “regulate” occurs in the title of the act, instead of the word “fix.” The title to chapter 81, Laws of 1893, reads :■ “An act regulating the fees,” etc. The Supreme Court, in the case of The State v. Newbold (56 Kan. 71), held the Act to be constitutional and valid. The title to chapter 113, Laws of 1877, reads : “An act to regulate the salaries,” etc. The Act was held to be constitutional by the Supreme Court in the case of Comm’rs of Norton Co. v. Shoemaker, supra. “Regulate” means to adjust by rule, method, or established mode ; to direct by rule or restriction ; to subject to governing principles or laws. This is what is sought to be accomplished in the Act in question — to adjust and maintain the fees a,nd salaries of the certain officers at a designated rate, which was a lower rate than that maintained by the general Fee and Salary Act.
There is some discussion as to when the Act took effect. It took effect, so far as the treasurer is concerned, from and after its publication. The Act in question is constitutional and valid.
The judgment of the trial court is affirmed.
|
[
112,
-18,
-80,
93,
106,
96,
3,
18,
73,
-95,
-89,
87,
-23,
-60,
5,
115,
-13,
45,
-15,
107,
-25,
-89,
87,
98,
-70,
-69,
-51,
-57,
-80,
79,
-2,
-33,
76,
56,
106,
-43,
70,
74,
-59,
-44,
-114,
-126,
41,
-56,
-39,
-64,
48,
125,
19,
27,
-75,
-17,
-29,
44,
29,
67,
41,
44,
-39,
-87,
65,
-23,
-122,
-107,
109,
7,
-79,
71,
-98,
-58,
-52,
46,
-104,
53,
0,
-8,
122,
-90,
-126,
86,
7,
-71,
12,
96,
102,
0,
37,
77,
-72,
-72,
15,
-42,
-99,
-90,
-41,
120,
91,
9,
-106,
29,
84,
-112,
7,
116,
-80,
-43,
21,
44,
6,
-114,
-44,
-77,
15,
46,
-118,
67,
-33,
51,
52,
65,
-51,
-21,
93,
70,
50,
27,
-49,
88
] |
Mahan, P. J.
This is an'action in the nature of a bill in equity, in which defendants in error seek to have the plaintiffs in error declared trustees for their use of a fund arising from the sale of personal property. Clark owned and ran a dairy in Johnson County, Kansas, shipping milk therefrom to Kansas City. He became indebted to both the plaintiffs and defendants. Subsequently, he moved to Kansas City and established his domicile in the State of Missouri. While so domiciled, he made and delivered to the plaintiffs in error, at Kansas City, Mo., a mortgage upon his dairy stock — comprising cows, fixtures, grain and other personal property — to secure a valid bona fide indebtedness to them. There is no question made of the good faith of the transaction between the parties. The property was on the farm of Clark in Johnson County, Kansas, where it had been prior to the removal of Clark to Missouri. The contention of the defendants in error was, that the chattel mortgage was a Missouri contract, to be construed by the ’laws of Missouri; that the rule of construction — to the effect that such a mortgage was, under those laws, a general assignment for the benefit of creditors —had been established by the United States Circuit Court for the District of Missouri. The court sustained this contention. The allegation in the petition is that the laws of Missouri make such a mortgage as this one is claimed to be a general assignment.
The District Court overruled a demurrer on behalf of the plaintiffs in error, defendants below, to both the petition of the defendants in error and to their evidence in support thereof. The plaintiffs in error stood upon their demurrer, and judgment was rendered against them. At the request of the parties the court made findings of fact and conclusions of law.
There are a number of questions raised, but it is necessary to consider only two of them. First, Is this contract governed by the laws of Missouri, or was the contract made with respect to the laws of Kansas and to be govered thereby? And, second, even though the contract be a Missouri contract, is there such a conflict between our laws and those of Missouri as to contravene the policy of the State of Kansas, so that the rule of comity must give way thereto?
We are clearly of the opinion, in the first place, that, under the law as it exists — as it is declared by the law writers and the courts,- this is a Kansas contract ; that the parties had in view the laws of Kansas in respect to it at the time it was executed and delivered ; and the law is well settled that, where a chattel mortgage or other contract concerning property is made by a person domiciled in one state, to another, domiciled in another state where the property is situated, the chattel mortgage or contract is to be performed or enforced in accordance with the laws of the latter state.
In support of this proposition, see Jones, Chattel Mortgages (4th ed.), § 305; 3 Am. & Eng. Encyc. of Law, 561, and authorities in note 5; Green v. Van Buskirk, 7 Wall. 139; Scudder v. Union National Bank, 91 U. S. 406; Pritchard v. Norton, 106 id. 124; McDaniels v. The Chicago and N. W. Rld. Co., 24 Iowa, 412; Boyd v. Ellis, 11 id. 97; 2 Kent’s Commentaries, * 459; Denny v. Faulkner, 22 Kan. 89; 2 Parsons on Contracts, § 5, * 582; Cox and Dick v. The United States, 6 Pet. 172; Andrews v. Pond et al., 13 id. 65; Bell et al. v. Bruen, 1 How. 169.
The rule of decision in the State of Missouri cannot be permitted to have application to this contract in the State of Kansas, because it contravenes the policy of the State of Kansas with respect to the property mortgaged, and is in conflict with the statute of the State. Our statute is, in effect, that a chattel mortgage, made by a resident of another state, on property in this State, when filed in the office of the register of deeds in the county in which the property is situated, is a valid mortgage and gives notice to all the world. Our Supreme Court has held that, even though a chattel mortgage covered all, or practically all, of the property of the mortgagor, and even though he was insolvent, the mortgage having been made in good faith to secure a valid debt — as the court found this to be in this case — that such mortgage was nevertheless valid. To allow the rule of decision in Missouri to prevail here, would be to overturn our own policy with respect to mortgages on personal property, and to render nugatory the provisions of our own statute. The rule of comity is never extended to such cases.
It follows that the court erred in overruling the defendant’s demurrer to the plaintiff’s petition, in overruling the defendant’s demurrer to the plaintiff’s evidence, in rendering judgment upon the special findings of fact for the plaintiffs and against the defendants, and in refusing a new trial upon the defendants’ motion.
The judgment is reversed, and the case remanded • with direction to the District Court to enter judgment for the defendants upon the findings of fact.
|
[
-78,
110,
-103,
108,
10,
32,
32,
-118,
115,
-79,
39,
83,
-19,
-50,
4,
109,
-26,
57,
65,
114,
69,
-77,
7,
64,
-46,
-77,
-39,
-51,
-79,
79,
100,
-41,
76,
56,
74,
-35,
-122,
-62,
-55,
28,
-82,
70,
11,
-63,
-40,
-62,
52,
-25,
22,
72,
37,
-65,
-13,
46,
57,
67,
109,
46,
121,
61,
-63,
-16,
-101,
5,
127,
7,
-79,
69,
-48,
39,
-40,
46,
-112,
57,
41,
-24,
94,
-74,
-122,
116,
79,
-99,
41,
38,
98,
1,
40,
-53,
-80,
-72,
47,
-33,
13,
-122,
-110,
88,
35,
42,
-66,
-100,
124,
20,
6,
124,
-28,
5,
31,
124,
7,
-17,
-16,
-77,
-115,
124,
-98,
-119,
-25,
-121,
32,
113,
-50,
-96,
93,
71,
58,
27,
-114,
-3
] |
Milton, J.
Defendant, a hack driver, was convicted in the police court of the City of Emporia, and afterwards in the District Court on appeal, of violating an ordinance of said City, which, ordinance, with its title, is as follows :
“An Ordinance to prohibit hotel porters and runners, hack and ’bus men, and peddlers, from soliciting custom on the platform of the passenger depot of the Atchison, Topeka & Santa Pe Railroad Company in the City of Emporia, Kan., and at the crossing of Neosho Street and Third Avenue in said City.
“Be it Ordained by the Mayor and Oouncilmen of the City of Emporia:
“Section 1. All hotel porters and runners, hack and ’bus men, and peddlers, are prohibited and forbidden to solicit custom or patronage on any of the platforms of the passenger depot of the Atchison, Topeka & Santa Fe Railroad Company in the City of Emporia, Kan., and at the crossing of Neosho Street and Third Avenue in said City : Provided, hmoever, that the standing by their hacks or omnibuses or their horses by hackmen within four feet of the north edge of the platform shall not be considered a violation of the provisions of this section : And provided, further, that the selling of newspapers shall not be considered a violation of this section.
“Sec. 2. Any person or persons violating any of the provisions of section 1 of this ordinance shall, upon conviction thereof, be fined in any sum not less than one dollar, nor exceeding twenty-five dollars, and costs, and shall stand committed until such fine and costs are paid.
“Sec. 3. This ordinance shall take effect from and after its publication.
“Approved May 5, 1885.”
The complaint charged the offense to have been committed on January 21, 1897. Appellant makes five specifications of error, as follows :
“First, the ordinance is violative of section 9, Cities of the Second Class Act, which requires the subject-matter of the ordinance to be clearly expressed in the title; second, the ordinance is illegal, unreasonable and in restraint of trade; third, the ordinance in question is partial and uncertain; fourth, there is a fatal variance between the ordinance and the complaint and proof; fifth, the evidence does not justify the judgment.”
We shall change the order for convenience of consideration. As to the fifth specification, we think the evidence sufficiently sustains the judgment.
The fourth requires little more than a statement of the facts. On the trial, the City made the following admission :
“It is admitted and agreed that the Atchison, Topeka & Santa Fe Railroad Company moved into the stone depot building between Rural and Neosho streets, in this City, in 1885 ; that a mortgage on the railroad was foreclosed, and in the reorganization of the company it took the name of The Atchison, Topeka & Santa Fe Railway Company, a separate organization under the laws of the State of Kansas; that it took out a new charter under the name of The Atchison, Topeka & Santa Fe Railway Company; that said company took possession of the road in January, 1896, and has continued to own and operate the railroad and all the platforms and appurtenances thereto, including the platforms spoken of in the evidence in this case.”
The ordinance has been in force since 1885. If it was not invalid for some other reason, it remains in force as to the place it describes. Mere change of ownership, or perhaps more correctly, in the name of the owner, which did not affect the character of the depot and platforms and the nature of their uses, or their-relation to the public, cannot.be held to have suspended the operation of the ordinance.
Turning now to the first specification of error, counsel call attention to section 9, chapter 19, General Statutes of 1889, relating to cities of the second class, which, provides “that no ordinance shall contain more than one subject, which shall be clearly expressed in the title.” We quote from appellant’s brief:
“A part of section 1 of the ordinance in question prohibits hotel men, ’bus men, etc., from soliciting custom, etc. ; but contains a proviso within its body, which becomes a part of its texture, that attempts to regulate the business. Section 2 provides a criminal liability for those who violate section 1, that is, violate it in the terms of its proviso. It is clear to be seen that the title of the ordinance is not broad enough to embrace the section in the terms of its proviso. Section 1, in the terms of its proviso, is regulative in its nature, and not prohibitive. The Supreme Court has held, in City of Emporia v. Volmer (12 Kan. 622), that the words ‘ restrain ’ and ‘ regulate ’ are not synonymous with ‘prohibit.’ Applying this rule, a title that prohibits would not include restraint or regulation. Stebbins v. Mayer, 38 Kan. 575.”
As we read the title of the ordinance, it purports to prohibit five classes of people from soliciting custom on the railroad platforms at the depot and at the intersection of Neosho Street and Third Avenue, to wit: Hotel porters and runners, hackmen, ’bus men, and peddlers.
An apparent exception is made in section 1 of the ordinance in relation to hackmen and ’bus men, but this exception does not constitute a departure from the purposes of the ordinance as expressed in the title thereof. It does not permit drivers of hacks and omnibuses to “ solicit custom or patronage ” on the platforms mentioned in the ordinance, but it declares that certain other acts on the part of such drivers shall not be considered as a violation of the ordinance. The reason for this provision is obvious. Drivers of hacks and omnibuses must use a portion of the depot plat form in order to accommodate persons who are entering or leaving such vehicles. If there were no exception in the ordinance they would not dare receive or unload passengers at the platform ; hence, a great inconvenience to the public would result. Besides, if no exception were made, and drivers of such vehicles should use the platforms only for receiving their passengers, it would be almost impossible to distinguish between this act and the act of soliciting. The ordinance, therefore, recognizes the nature of the case to which it is to be applied.
As to the second and third specifications of error, counsel deny the power of the city council to pass the ordinance in question, and contend that the power to pass an ordinance must be vested by the Legislature in the governing body of a city in express terms, or be necessarily implied in and incident to the powers expressly granted, and must be essential to the declared purposes of the corporation. They further claim that powers encroaching upon the rights of the public or of individuals must be plainly and literally conferred by the charter; that the ordinance must be reasonable, not inconsistent with the laws of the State, not repugnant to fundamental rights, and not partial or unfair. The case of Anderson v. City of Wellington (40 Kan. 173) is cited as sustaining such claims. In that case the ordinance declared it unlawful for any person or persons, society, association or organization to parade any public street of the city of Wellington shouting, singing or beating drums or tambourines, or playing upon any other musical instrument, or doing any other act designed or intended or calculated to call together an unusual crowd or congregation of people on any of said public streets, without the consent of the mayor of said city. The court held that the right of the people to assemble in the street for any lawful purpose could not be abridged by the city council, and that the greatest exercise of power in such direction by a city council would be to prescribe regulations respecting parades and assem- ' blies. The court used the following language :
“All by-laws made to regulate parades must fix conditions upon which all persons or associations can move upon the public streets, expressly and intelligently, such conditions operating on all of the same class alike, and being reasonable in their requirements and not oppressive in their operation; and must not give the power of permitting or restraining processions to an unregulated official discretion.”
We observe that the case at bar is entirely different from the one cited. Here the council, in the interest of the public and for its protection, comfort, and convenience, has prohibited the exercise of certain voca,tions at a certain place. All who travel cannot but appreciate such a regulation. We think, too, that sections 31 and 68 of the Act relating to Cities of the Second Class confer a large discretion upon the councils of such cities as to the passage of ordinances and regulations which may be deemed expedient for the maintenance of the peace, good government and welfare of the city.
It appears that the line within which hackmen and ’bus men were permitted to operate was clearly marked, and that the defendant admitted to two witnesses that he knew he was six feet or more beyond the line.
We cannot hold that the ordinance is partial and uncertain, nor that it is an unreasonable exercise of the powers possessed by the city council.
The judgment of the trial court is affirmed.
|
[
-16,
-6,
-16,
-33,
94,
-52,
56,
-70,
19,
-79,
-90,
31,
-51,
-56,
5,
57,
115,
-3,
-44,
113,
-12,
-126,
79,
-94,
-78,
-13,
-21,
-57,
-68,
73,
-26,
-44,
75,
48,
-54,
-99,
70,
74,
41,
-36,
-114,
37,
-119,
-32,
89,
65,
52,
42,
3,
3,
113,
14,
-13,
42,
24,
-45,
-83,
108,
-53,
-81,
-23,
-13,
-16,
-99,
110,
22,
-126,
36,
-72,
-123,
-44,
45,
-100,
17,
116,
-24,
119,
-90,
-110,
-10,
39,
-55,
-127,
34,
98,
33,
17,
-81,
-96,
-116,
46,
-6,
-113,
-89,
-78,
17,
98,
13,
-34,
-99,
86,
22,
6,
-2,
-6,
21,
25,
104,
-125,
-113,
-76,
-109,
-83,
-76,
-124,
-65,
-17,
-25,
17,
112,
78,
118,
95,
86,
50,
-101,
-113,
-12
] |
The opinion of the court was delivered by
Horton, C. J.:
This was an action in the court below upon a promissory note executed by James H. and John L. Sollenberger to Robert L. Stephens, on August 19, 1886, for $700, with 10 per cent, interest, payable January 1, 1887. There was a credit upon the note of $77. The defendants answered that James H. Sollenberger was of unsound mind, and incapable of managing his own business; that Robert L. Stephens, during a part of 1885 and 1886, acted as his attorney in fact in selling town lots in Woodston, Rooks county, and also in transacting his business; that a settlement was made between the parties on the 19th of August, 1886; that the note in controversy was then executed, but that such settlement was unfair and unjust, because Stephens made a fraudulent statement concerning his receipts and expenditures while transacting the business for James H. Sollenberger. Trial had before the court with a jury. The jury returned a verdict in favor of Stephens and against James H. and John L. Sollenberger for $500. Judgment was entered accordingly, and the defendants excepted and bring the case here.
It appears from the evidence that James H. Sollenberger was a person of weak mind; that no account of his business transactions between Stephens and James H. Sollenberger had been kept by Sollenberger, and that, at the time of the settlement and the execution of the note sued on, James H. Sollenberger and the parties who assisted him at the settlement were compelled to rely upon the statements and accounts of Stephens.
It is claimed that the court erred in instructing the jury that the burden was upon the defendants to prove that Stephens had failed to render a full account of his trust. At the time the settlement was made between Stephens and James H. Sollenberger, James H. was represented by C. W. Smith as his attorney, and by his brother, John L. Sollenberger, who was then acting as his attorney in fact. Robert L. Stephens was a farmer, but assisted in locating the depot of the Missouri Pacific Railroad upon James H. Sollenberger’s land at Woodston, and after such location carried on the business of a real-estate agent. After the settlement between the parties was agreed to, C. W. Smith, as the attorney of James H. Sollenberger, drew up a written settlement, which was signed. The $700 embraced in a promissory note was allowed Stephens in the settlement, for his services as attorney in fact and agent for James H. Sollenberger. He claimed that he had rendered service for nearly 14 months. Upon the pleadings, the burden of proof was upon the defendants below to establish the truth of the allegations of their answer. The settlement and compromise of the 19th of August, 1886, was in writing, signed by R. L. Stephens and James H. Sollenberger. This was witnessed by M. C. Reville, the attorney of R. L. Stephens, §,nd C. W. Smith, the attorney of James-H. Sollenberger. The note was executed and delivered to Stephens by James H. Sollenberger and his brother, John L. Sollenberger, in accordance with the terms of the written settlement and compromise. The execution of the note was admitted, and to defeat the same, or any part thereof, it was necessary to prove the allegations of the answer; therefore, the court committed no error in instructing the jury that the burden of proof in this regard was upon the defendants.
There are various other alleged errors complained of, but an examination of the record does not convince us that the trial court committed any error material or prejudicial to the rights of the defendants. No material evidence was rejected. The consideration mentioned in the deeds taken by Stephens was fully explained, and to all appearances the trial was fair. The court below expressly instructed the jury that if Stephens acted fraudulently in the settlement, or misrepresented things to James H. and John L. Sollenberger, or C. W. Smith, the attorney, the note should be defeated or the amount thereof reduced according to the facts in the case. If Stephens had made a settlement alone with James H. Sollenberger, we could readily understand, in view of his weak-minded condition, that such a settlement would be worthless. But at the time the settlement was made James H. Sollenberger was well represented by his brother, John L. Sollenberger, and by C. W. Smith, his attorney. Under all the circumstances of the case, we do not perceive any good reason for granting a new trial.
The judgment of the district court will be affirmed.
All the Justices concurring.
|
[
-16,
124,
-79,
-66,
26,
96,
42,
-101,
107,
-32,
-91,
123,
-55,
-40,
0,
117,
34,
13,
85,
107,
-26,
-109,
23,
-13,
83,
-13,
-45,
-49,
-80,
76,
-12,
-57,
76,
36,
10,
29,
-26,
-54,
-57,
20,
-114,
52,
9,
-28,
89,
64,
52,
-5,
19,
67,
117,
46,
-13,
43,
29,
74,
105,
44,
105,
-87,
-47,
-79,
-69,
15,
91,
22,
-109,
2,
-100,
3,
-56,
110,
-102,
53,
25,
-19,
119,
-74,
-122,
-12,
65,
57,
12,
-26,
103,
35,
93,
-49,
-24,
72,
15,
-9,
-123,
-89,
-80,
72,
2,
33,
-66,
-103,
-4,
82,
2,
-2,
-17,
12,
25,
36,
1,
-114,
-106,
-61,
-101,
124,
-102,
11,
-5,
-93,
33,
97,
-57,
-78,
93,
87,
50,
-101,
-114,
-108
] |
The opinion of the court was delivered by
Johnston, J.:
This is a proceeding to reverse a ruling of the district court of Sedgwick county opening up a judgment rendered May 12, 1887, quieting the title to two lots in the city of Wichita. The judgment was rendered without other service than by publication, and the defendant made an ap plication, under § 77 of the code, to have the judgment opened and to be let in to defend, and he supported his application by an affidavit setting forth the nature of his title to the lots; that at all times during the pendency of the action he was a resident of Washington territory, and absent from Kansas, and that he had no actual notice of the commencement or pendency of the action; and, further, that he had paid the taxes assessed on the property ever since he had acquired title thereto. He also presented a full answer to the petition of the plaintiffs, denying every allegation therein except that of possession by plaintiffs, alleging that he was the exclusive owner of the legal and equitable estate in the property in controversy and entitled to its immediate possession. Due notice of the application and the hearing thereon was given on February 28, 1888. An order was made vacating and opening up the judgment, and permitting the defendant to file his answer to the plaintiffs’ petition. Subsequently, the cause came on for final trial, and judgment was given, dismissing the plaintiffs’ action to quiet title, and adjudging that Martin Scully was the owner and entitled to the immediate possession of the real estate.
The only objection to the regularity of the proceedings in opening up the judgment is, that the defendant failed to proffer payment of costs in the .answer which he filed. The objection cannot be sustained. Neither the proffer nor the payment of costs is indispensable to the opening up of a judgment under the provisions of § 77 of the civil code. Notice of the application, proof by affidavit to the satisfaction of the court that there was no actual notice of the action and time to appear to make a defense, and presentation of a full defense to the petition, are prerequisites, but costs are not to be paid unless the court hearing the application requires payment. Satterlee v. Grubb, 38 Kas. 234, is cited as sustaining the claim of the plaintiffs; but, while the language of the opinion may give some reason for the claim, it was not intended to hold that the offer to pay costs was a prerequisite to the hearing and determination of the application. We can not add to the statutory requirement, which only requires the applicant to “ pay all costs if. the court require them to be paid.” Even if a formal offer to pay costs was necessary, it would be immaterial in the present case, for it is conceded that the court maydn its discretion open the judgment and permit the defendant to come in and make a defense without the payment of costs; and this having been done, the matter of a preliminary offer is now of little consequence. The court hears such an application after notice, upon the affidavit of the applicant and any counter-affidavits that may be filed, and, if it appears that the judgment was rendered without other service than by publication in a newspaper, and that the answer or defense presented is a sufficient one, determines that it shall be opened, and also whether under the circumstances the applicant should be required to pay costs as a condition of granting the relief asked. The court does not and cannot well determine whether the payment of costs should be required as a condition precedent to the opening of a judgment until the hearing of the application is had and the facts in the case are developed. If it was shown that the applicant had no notice whatever of the commencement or pendency of the action, and had a good defense thereto, and that he had promptly and without delay presented his application to the court upon learning of the rendition of the judgment, there would be little reason for the court to require the payment of costs. On the other hand, if it should appear that he had delayed in presenting the application after learning of the judgment, or if it was doubtful whether or not he had a sufficient defense, the court might then be justified in requiring the payment of costs. An offer to pay costs, however, need not be made until it has been determined that payment will be required. If payment is required, the defendant cannot proceed until it is made; but if no such condition is imposed, then an offer is useless. Under the code, the payment of costs before the opening of a judgment rests in the discretion of the court, and in the exercise of that discretion the court in the present case has not required the payment of costs as a pre requisite to the opening of the judgment; and hence the objection of the plaintiffs must be overruled.
Judgment affirmed.
All the Justices concurring.
|
[
-16,
-18,
-12,
94,
-22,
96,
32,
-102,
65,
-80,
-94,
83,
105,
-54,
20,
41,
-14,
45,
-16,
105,
70,
-77,
23,
-15,
-46,
-77,
-45,
-51,
-72,
-51,
-12,
-42,
76,
49,
66,
-75,
70,
-126,
1,
28,
-114,
-113,
9,
76,
-45,
64,
52,
27,
48,
11,
49,
-66,
-13,
42,
29,
-61,
105,
45,
-21,
-84,
-127,
-8,
-82,
-123,
127,
22,
48,
54,
-104,
-125,
72,
-18,
-112,
57,
4,
-24,
91,
-90,
22,
-4,
73,
-101,
41,
110,
98,
33,
45,
-17,
-8,
-104,
15,
-9,
-115,
-90,
-75,
88,
98,
1,
-74,
-99,
117,
18,
7,
126,
-25,
-123,
28,
-4,
11,
-118,
-42,
-79,
15,
60,
-118,
83,
-1,
-89,
48,
97,
-53,
-90,
92,
83,
114,
-101,
-113,
-72
] |
Opinion by
Green, C.:
The appellant Frank Handy was convicted, with one Jake Probaseo, at the September term, 1890, of the district court of Cowley county, of grand larceny, and was sentenced to imprisonment in the penitentiary for three years. He appeals to this court, and asks a reversal of the judgment and sentence, upon a number of grounds:
I. It is claimed that, during the cross-examination of the appellant, the State was permitted, against his objection, to ask the following question: “As a matter of fact, at the last term of this court, you were convicted of grand larceny, were you not?” which was answered: “Yes, sir; I pleaded guilty here to larceny last court;” and that this was error. The claim of the appellant is not well founded. This court has said, where a defendant in a criminal case takes the witness stand to testify in his own behalf, he assumes the character of a witness and is entitled to the same privileges, and subject to the same tests, and to be contradicted, discredited, or impeached, the same as any other witness. (The State v. Pfefferle, 36 Kas. 90, and authorities there cited.) As stated in the opinion, these authorities are to the effect that, for the purpose of impairing his credibility, a witness may be cross-examined as to specific facts tending to discredit him as a witness, although such facts are irrelevant and collateral to the main issue. Under the rule thus established, there was no error in the cross-examination of the appellant.
II. Complaint is also made that the trial court erred in its charge to the jury, concerning a conspiracy between the defendants on trial and the admissions of one of the defendants. We cannot consider this error, for the reason that no exception was taken to the giving of the instructions, or any portion of them. This court will not review instructions given by the district court to the jury, unless they are excepted to at the time. (Comm’rs of Allen Co. v. Boyd, 31 Kas. 765; Gafford v. Hall, 39 id. 166; Mercantile Co. v. Fullam, 43 id. 181.) Section 219 of the criminal code provides that exceptions to any decisions of the court may be made in the same manner as provided by law in civil cases.
III. The appellant’s last assignmentof error is, that thecourt permitted the state to ask the defendant Probasco, If Handy did not have a sister upon whom he [Probasco] was waiting, and for that reason he was attempting to shield Handy. No objection was made to the question, and no exception taken at the time. An objection, to be available, must run to the specific testimony which is objectionable. (The State v. Cole, 22 Kas. 474; Long v. Kasebeer, 28 id. 240.)
In this case, no objection was made to the question, and no exception taken at the time to the answer: hence, the error cannot be considered.
It is recommended that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
|
[
48,
-22,
-23,
-67,
-120,
-32,
43,
-72,
65,
33,
102,
54,
45,
-126,
4,
43,
-13,
125,
84,
113,
-57,
-74,
23,
81,
-14,
-13,
-15,
87,
117,
111,
-26,
-43,
72,
48,
-62,
85,
103,
-64,
103,
80,
-114,
5,
-88,
98,
-62,
12,
32,
59,
22,
31,
113,
-66,
-93,
42,
28,
-53,
105,
44,
75,
-65,
113,
49,
-106,
-115,
77,
4,
-93,
38,
-120,
7,
-8,
62,
-100,
17,
1,
-8,
115,
-106,
-120,
-44,
11,
-101,
-51,
98,
98,
33,
28,
111,
-87,
-119,
-81,
-65,
-99,
-89,
-112,
64,
75,
44,
-106,
-99,
101,
116,
38,
-4,
-27,
76,
49,
44,
33,
-113,
-108,
-110,
-113,
44,
-80,
-13,
-53,
3,
20,
113,
-51,
-30,
93,
70,
81,
-101,
-114,
-108
] |
Opinion by
Strang, C.:
This was an injunction proceeding begun in the district court of Wyandotte county October 20, 1890, to restrain the collection of certain special assessments-levied against the property of the plaintiffs by the defendant, to pay the first installment of the amount assessed against said property for paving and curbing Central avenue, Jn said defendant city, and to declare the entire assessment void. The case was heard by the district court of Wyandotte county November 17, 1890. The court made special findings of fact and conclusions of law, and rendered a general judgment dissolving the injunction and taxing the costs to the plaintiffs, who bring the case here for review. There are a number of errors assigned in this case, and an almost innumerable number of sub-questions raised and discussed by counsel for the plaintiffs in their brief, and in the oral argument before the commission. Several of the questions have been decided by this court in opinions recently reported, and are therefore taken out of the domain of disputed questions, and have become the settled law of the .state. In the light of these decisions, there is but little to settle in this case.
The first question we desire to notice is raised by the plaintiffs’ objection to the first conclusion of law by the trial court. We notice this question first, not simply because it relates to the first conclusion of law in the case and is the first error assigned, but because it raises a question that should be first settled. It raises the question whether or not Central avenue is a street within the defendant city. If Central avenue is not a street within said city, then the mayor and council did not and could not obtain jurisdiction over the same for paving or curbing, or for the purpose of other improvements. And if said avenue is not a street of said city, then this case should terminate here, and in favor of the plaintiffs. The conclusion of law referred to reads as follows:
“That the exclusive ownership and control of Central avenue is in the city, the parties mentioned in the petition as owning certain parts of said avenue having by their acts dedicated such pieces of land to public use.”
The plaintiffs allege that this conclusion is erroneous. We do not think so. We think there is sufficient in the findings of fact of the court below which are unchallenged by the plaintiffs to fully sustain this conclusion of the court-. In July, 1887, there was no street where Central avenué now is. About that time the Inter-State Consolidated Rapid Transit Railway Company opened up aud graded its right-of-way from Mill street to Eighteenth street. Soon after, adjacent property on both sides was platted into additions by the owners along the line of said roadway, and in conformity to its course, and dedications were made to the city and county of sufficient ground on either side of the said right-of-way to constitute a roadway 80 feet wide, almost continuously, for the entire length of such avenue. And the findings further show that said railway company, the Riverview Land and Improvement Company by its officers, and the other individuals who, it is alleged in plaintiffs’ petition, own portions of said street, in their proper persons, acquiesced in the use and occupation of said avenue as a street by the defendant city. They permitted the city to build sidewalks along said street, and most of them joined in a petition asking the city to build such walks. They also asked the city to extend the water mains along said street, that they might connect therewith and obtain a supply of water; and again, the most of the parties who, it is alleged, own part of said street joined in a petition asking the city to extend said water mains; and all the parties stood by and saw the street curbed and paved by the city, without ever objecting thereto, or making any claim to the ground being so paved. All such parties are estopped now from claiming ownership in the lands constituting said street, and as the entire length of said street was taken into the city before it was paved, said avenue is a street of and within the limits of said defendant city, and, as such, is within the control of the mayor and council of said city. Such avenue being a street within said city, the mayor and council thereof might obtain jurisdiction over it for the purpose of curbing and paving the same, by taking the necessary statutory steps which, under the law, gives them jurisdiction over the streets of the city for that purpose. Did the mayor and council take such steps in this case, and obtain jurisdiction over Central avenue for paving purposes? The statute provides that they must pass and publish a declaratory resolution, declaring the necessity for paving the streets sought to be paved. Such a declaratory resolution was passed June -25, 1889, and published according to law. August 24, thereafter, ordinance No. 1001 was published, being an ordinance providing for the paving and curbing of Central avenue between Mill street and Eighteenth street. Afterward the city engineer prepared plans, specifications and estimates for curbing and paving said avenue. The contracts for said improvement were then let. Appraisers were appointed, and the property deemed liable for the improvements was appraised, and on November 22, 1889, ordinance No. 1150 was passed and published, being “An ordinance apportioning and assessing the costs of paving and curbing Central avenue from Mill street to Eighteenth street upon the property liable for the payment thereof.” Attached to this ordinance, and published with it in the official city paper, was a schedule or list of lots assessed, including those of the plaintiffs, for the purpose of the improvement of said avenue, with amount of the assessment charged against each lot.
In May, 1890, the work under the paving contract was complete, and the city engineer accepted the same. In August, 1890, the work on the curbing contract being completed, the city engineer accepted the work under that contract, and made his final report to the city council, which was accepted by that body, and the contractors fully paid for their work so done. In August, 1890, ordinance No. 1651, being “An ordinance levying a tax to create a revenue to pay the maturing principal and accruing interest on internal-improvement bonds issued for paving and curbing Central avenue from Mill street to Eighteenth street,” was published. It thus appears that all the necessary conditions precedent to obtaining jurisdiction over said avenue for paving and curbing purposes were performed, and the council of said city obtained jurisdiction over said street for such purposes.
This case seems to have been brought under § 253 of the code; but this court has already determined that §253 has nothing to do with a case of this kind. In the case of Lynch v. Kansas City, 44 Kas. 452, (same case, 24 Pac. Rep. 973,) after quoting from the opinion in the case of City of Topeka v. Gage, 44 Kas. 87, referring to the limitation clause in ¶590 of the General Statutes of 1889, it is stated: “With this broad and liberal interpretation of this statute, a conflict inevitably arises between it and §253 of the code.” And after referring to ¶ 590, containing the thirty-days’ limitation clause, it is added:
“ The plain intent of these various provisions is to cause litigation, if any there is to be, to be commenced before the issue of the bonds, so as to avoid any uncertainty about their legality that might afterward affect their market value. The thirty-days’ limitation, within which the assessments that are the basis of the bonds can be attacked, is a wise one, is reasonable as to time, and is of unquestioned validity in every respect. To give it force we must hold that it changes the time within which an action of this kind can be instituted under §253 of the code, and leaves that section to apply only to illegal taxes and illegal charges. The word Assessment,’ as used in § 253 of the code, and in ¶ 590 of the General Statutes of 1889, means the specific amount charged on the property, and not the mere act of valuation.”
In the case of Marshall v. City of Leavenworth, 44 Kas. 459, (same case, 24 Pac. Rep. 975,) the court held that —
“The limitation of thirty days within which an action can be brought to defeat or avoid a special assessment for street improvements under § 1, ch. 101, Laws of 1887, is constitutional and valid, and the time when the assessment is ascertained, and when the limitation commences to run, is when the ordinance levying the assessments, and designating the amount of the assessment levied upon each particular lot or piece of ground, is published and takes effect.”
Following the rule so laid down, the thirty-days’ limitation in this case commenced to run December 23, 1889 — almost a year before the ease was begun in the district court. (See, also, Wahlgren v. Kansas City, 42 Kas. 243; City of Topeka v. Gage, 44 Kas. 87; 24 Pac. Rep. 82; and Lynch v. Kansas City, 44 Kas. 452, 24 Pac. Rep. 973, referred to herein.).
This is not all the laches of the plaintiffs, while it is all that is, perhaps, material; yet, so far as any claim of equity is concerned, we may call attention to the fact that they not only waited until the thirty-days’ statute had run, but they stood by and saw the contracts for paving and curbing said avenue let; saw the work being done thereunder; an ordinance passed .and published providing for the issuance of bonds to raise the means to pay for the work; saw the bonds sold, the work under the contracts accepted by the city engi neer, his report thereof made to the council of the city, and by them approved, the contractors fully paid, and an ordinance passed and published levying a tax upon the property assessed for the improvement, to meet the maturing principal and accruing interest on said bonds, and then, after all this was done, still waited more than 30 days before commencing their suit. The plaintiffs have lost their rights by waiting too long. There was no reason why, when on November 22, 1889, ordinance No. 1150 was published, if property-owners felt aggrieved by the assessment therein made, they should not have commenced their proceeding to enjoin the city from proceeding further. If, as they now assert, 96 lots thát should have been included among the number charged with the improvement of that street were left out of the assessment, that fact was as well known then as now, or at the commencement of this suit. This and all the other irregularities, short-comings and defects, in the method of performing the work of curbing and paving were absolutely waived when the thirty-days’ statute had run and they remained unchallenged. The things necessary in this case, to give the mayor and council of the defendant city jurisdiction over Central avenue for paving and curbing purposes, were the fact that Central avenue was a street within the limits of said city, the passing of the resolution declaring the necessity for the improvement, the making of plans, specifications and estimates for the work by the city engineer, the appraisement of the property charged with the expense of the improvement, and the passage and publication of the ordinances providing fotf paving and curbing said avenue, with a specification of the lots charged and the amounts assessed against each lot. This done, the council had jurisdiction of the street for paving and curbing purposes; and jurisdiction having attached, it could go ahead with the work unchallenged, unless, within thirty days from the publication of the ordinance ascertaining the assessment, suit was begun. Having held that Central avenue is.a street within the limits of defendant city, and that the 'council of said city took the necessary statutory steps to obtain jurisdiction over the same for paving and curbing purposes, and the plaintiffs’ cause of action on the merits being barred by the express terms of the statute, as well as prior decisions of this court, we will not examine the numerous irregularities, defects and short-comings discovered and argued by plaintiffs in their brief.
We recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
|
[
-16,
-24,
-12,
108,
74,
-64,
24,
-104,
65,
-77,
-28,
87,
109,
-54,
29,
61,
-66,
121,
81,
107,
-63,
-78,
71,
3,
-80,
-13,
123,
-51,
51,
109,
100,
70,
76,
48,
-53,
-107,
70,
97,
7,
94,
-114,
-107,
73,
76,
-55,
96,
52,
107,
18,
79,
49,
-113,
-9,
41,
28,
-61,
-24,
44,
-53,
-87,
-13,
-6,
-84,
23,
127,
14,
1,
102,
-104,
-127,
-56,
8,
-112,
53,
16,
-24,
115,
-90,
-122,
118,
5,
-37,
-116,
-30,
99,
97,
96,
-17,
-8,
-100,
14,
-3,
-115,
-90,
-126,
25,
99,
3,
-106,
-105,
101,
86,
7,
-2,
-26,
5,
25,
124,
7,
-114,
-78,
-79,
-49,
-36,
-128,
67,
-17,
3,
48,
97,
79,
92,
95,
-13,
20,
-37,
78,
-79
] |
The opinion of the court was delivered by
Johnston, J.:
Frank Durein asks the reversal of an order and judgment made in an injunction proceeding. On March 19,1886, the state of Kansas obtained a final judgment of perpetual injunction against Frank Durein and Conrad Kreipe, forever enjoining them, and each of them, from using or permitting to be used a certain building in the city of Topeka as a place where intoxicating liquors are sold, bartered, or given away, or kept for sale, barter, or gift, otherwise than by authority of law. On April 1, 1891, the county attorney of Shawnee county filed an affidavit with the clerk of the district court, charging that Durein & Kreipe had violated the perpetual injunction which has been mentioned, and thereupon the court issued an attachment to bring them before the court, and requiring them to show cause why they should not be punished for the alleged contempt. On April 13, 1891, Durein appeared, and a hearing was had upon the charge of contempt, when it was found that Durein had willfully and knowingly used, and permitted others to use, .his premises as a place where intoxicating liquors were sold and given away without authority of law, in violation of the decree and judgment of the district court, and he was adjudged to be guilty of contempt. The penalty imposed was that he should be confined in the county jail for 40 days, pay a fine of $500, and that a fee of $100 be taxed for the county attorney as a part of the costs in the case; and, further, that Durein should stand committed to the jail of the county until the fine and costs were paid. A reading of the testimony leaves no doubt that Durein was engaged in the unlawful sale of intoxicating liquors on his premises, contrary to the decree of injunction; but nevertheless he insists that the proceedings in contempt were erroneous, and the judgment unauthorized.
The first error assigned by Durein is that his demand for a jury trial was wrongfully refused. While the proceeding was of a criminal nature, it was really incident to and one of the final steps in the civil action of injunction. Pie was not entitled to a jury trial in the original proceeding, and neither could he demand a jury as a matter of right to try the charge that he had violated the injunction previously granted. The constitutional provision that “ the right of trial by jury shall be inviolate,” has no application in a summary proceeding of this character. This guaranty does not extend beyond the cases where such right existed at common law; and the right to punish for contempt without the intervention of a jury was a well-established rule of the common law. (Kimball v. Connor, 3 Kas. 414; The State v. Cutler, 13 id. 131; In re Burrows, 33 id. 675; McDonnell v. Henderson, 74 Iowa, 619; The State v. Becht, 23 Minn. 411; The State v. Doty, 32 N. J. Law, 403; The State v. Matthews, 37 N. H. 451; Candy v. The State, 13 Neb. 445; Arnold v. Commonwealth, 80 Ky. 300; King v. Railway Co., 7 Biss. 529; Neal v. The State, 9 Ark. 259; Crow v. The State, 24 Tex. 12; Hart v. Robinett, 5 Mo. 11; Eikenbury v. Edwards, 25 N. W. Rep. 832; Rapalje on Contempts, § 112; 3 Am. & Eng. Encyc of Law, 719.)
The next error alleged is, that declarations made by Conrad Kreipe, not in the presence of Durein, were received in evidence over his objection;. but counsel fail to point out where, in the voluminous record brought up, such testimony may be found. The pressure of business in this court is such that we cannot stop to search through a large record for a^eSed errors that are not specifically pointed out, as the rules of the court require. Besides, the concessions that have been made in this case would in any event render the objection immaterial.
The further objection is made that Durein was sworn as a witness at the instance of the state. The record discloses that the court sustained an objection and did not require him to testify; and, hence, there is nothing substantial in the objection.
Is is next contended that the court had no authority, to allow the county attorney a fee of $100, to be taxed as costs against the defendant. It is claimed that the authority for taxing a fee for the county attorney in such a case may be found in §4 of chapter 165 of the Laws of 1887. It is there declared that all places where intoxicating liquors are manufactured, sold or given away in violation of law are common nuisances, and provision is made for abating and-enjoining the maintenance of such nuisances. To accomplish this object, provision is made in' the same section for maintaining three proceedings or actions: First, a criminal action for prosecuting and punishing those who maintain a common nuisance; second, a civil action to abate and perpetually enjoin the maintenance of a nuisance; and, third, the prosecution and punishment of those who, in violation of an injunction, proceed to keep and maintain a common nuisance. It is then provided that—
“In case judgment is rendered in favor of the plaintiff in an action brought under the provisions of this section, the court rendering the same shall also render judgment for a reasonable attorney’s fee in such action in favor of the plaintiff and against the defendants therein, which attorney’s fee shall be taxed and collected as other costs therein, and when collected paid to the attorney or attorneys of the plaintiff therein.”
In the contempt proceeding a trial is had, and there is also a formal judgment rendered, as well as in the other proceedings provided for in that section. There is an equal necessity for the services of the attorney general or county attorney in that proceeding as in the others. Although summary in its character, and the trial is had without a jury, an information or complaint must be filed and proper preliminary steps taken to bring the party before the court for trial. Evidence is then produced, and if the defendant is convicted the court imposes a fine of not less than $100, nor more than $500, and imprisonment in the county jail of not less than 30 days nor more than six months. As the state obtains a judgment in such a proceeding, it would seem under the provisions of the statute that an attorney’s fee might be awarded in that case the same as in the other. In the present ease, however, an insuperable objection exists against the allowance of such a fee and the taxing of the same as costs against the defendant. No proof was offered before the court with reference to what constituted a reasonable attorney’s fee in the case; and hence the allowance of the same was unauthorized.
It is further contended that there was no authority to impose the penalty adjudged by the court against Durein. The ground of this claim is that the judgment of injunction was given in 1886 under the authority of § 13 of chapter 149 of the Laws of 1885, but that the violation of the injunction was in 1891, after that section had been amended and repealed. The section was amended by §4 of chapter 165 of the Laws of 1887, but the only change made was in the penalty provided for the violation of injunctions granted under that law. Under the law of 1885, the court might impose a fine or imprisonment, or both, in its discretion; whereas, under, the law of 1887, the punishment is required to be both fine and imprisonment. But the amount of the fine and the duration of the imprisonment were not changed. In fact, the provisions of the two sections are identical, except that in the latter it is made fine and imprisonment, instead of fine or imprisonment, in the discretion of the court. It is clear that the provisions of the law of 1887 were applicable to the case, and that the defendant was subject to the penalty mentioned in § 4 of chapter 165 of that act. Nothing in that acj- indicates a purpose on the part of the legislature to abrogate or annul any decrees of injunction which had been already granted. Every provision with reference to instituting an action of injunction and obtaining a judgment perpetually enjoining the maintenance of a common nuisance is the same in every particular as the law of 1885. So far as the provisions with reference to what constitutes a nuisance, and how the same may be abated and perpetually enjoined, are concerned, the law of 1887 was a reenactment of that of 1885, and they have continued uninterruptedly in force. “The pro visions of any statute, so far as they are th'e same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.” (Gen. Stat. of 1889, ¶ 6687.) The amended law simply provides a different penalty for the violation of such injunctions, without regard to whether they were granted before or after the amendment was made. It is beyond question that it is competent for the legislature to change the penalty for the violation of existing injunctions at any time; and, where the penalty is increased or reduced without any express purpose of excluding existing injunctions from the new rule, it will apply to them as well as to judgments thereafter rendered. Even if the law of 1885 were in force, the penalty adjudged by the court was no greater than might have been inflicted under that act. By its terms the punishment for contempt might be both fine and imprisonment, in the discretion of the court; and the penalty adjudged did not extend beyond that. The act of 1887, however, furnishes the measure of punishment for a contempt of that character, and it authorized the judgment that was rendered.
Finally, it is suggested, rather than argued, that the decree of injunction is dormant and insufficient as a basis for a contempt proceeding, for the reason that more than five years have elapsed since its rendition. The provision of the code that a judgment shall become dormant and cease to operate as a lien upon the estate of the debtor when execution has not been taken out for a period of five years has no application to a judgment of this character. It was final and perpetual, and n0 executi°a was necessary to continue it in force, It perpetually enjoined the defendants from the . . n ^ , commission or an otrense, and created no lien on their estates, and did not come within either the letter or spirit of the statutory provision with reference to dormant judgments.
The judgment of the district court will be affirmed, except as to the allowance of $100 as attorney’s fee, which has been taxed as costs in the case. This item should be stricken out. The cause will be remanded to the district court for this modification; and, when so modified, the judgment will stand affirmed.
All the Justices concurring.
|
[
-80,
-18,
-72,
30,
10,
96,
46,
-102,
66,
-79,
-73,
83,
-23,
-38,
5,
123,
-21,
-19,
84,
105,
-36,
-73,
22,
-63,
-42,
-45,
-48,
-35,
-75,
111,
-9,
-36,
72,
52,
-118,
-35,
102,
66,
65,
84,
-118,
4,
9,
-23,
-37,
72,
48,
19,
18,
11,
113,
62,
-29,
46,
28,
-45,
105,
44,
-53,
45,
-47,
-80,
-67,
-107,
109,
22,
-127,
18,
-104,
7,
88,
126,
-102,
49,
7,
-8,
115,
-74,
-122,
116,
71,
-71,
36,
102,
35,
32,
117,
-21,
-8,
-88,
62,
-73,
-123,
39,
-77,
80,
106,
32,
-74,
-103,
126,
22,
7,
-2,
-26,
21,
-107,
56,
2,
-118,
-112,
-79,
-113,
57,
-122,
85,
-53,
37,
33,
97,
-59,
116,
92,
82,
85,
27,
-98,
-100
] |
The opinion of the court was delivered by
Johnston, J.:
The city of Syracuse brought an action against W. F. Reed & Co. to recover $218.79. It was alleged that the defendants received from N. W. Harris & Co., of Chicago, $8,360, which was the proceeds of certain bonds of the city of Syracuse that had been sold in Chicago, and that the defendants had paid over only the sum of $8,141.02, and had refused to pay to the city the balance of the amount received, although payment thereof had been demanded. In the answer it was admitted that Syracuse was a city of the third class, and that the defendants were a co-partnership; but the further allegations of the petition were denied. A jury was waived, and the cause was submitted to the court for trial. After testimony had been introduced by the city, the court sustained defendants’ demurrer to the evidence and gave judgment in their favor.
The plaintiff complains of this ruling, and the question before us is, whether the testimony offered, although it may be weak and inconclusive, tends to prove all material facts in issue. A demurrer to the evidence admits, not only the truth of the facts directly proved by the plaintiff, but also all that may be fairly inferred from them; and, unless the plaintiff has utterly failed to prove its case, or some material fact in issue in the case, the demurrer cannot be rightly sustained. (Railroad Co. v. Foster, 39 Kas. 329, and cases cited.) Governed by these rules, which are well settled, we think the demurrer in the present case should have been overruled. Looking at the testimony in the light most favorable to the plaintiff, it appears that W. F. Reed was city treasurer of Syracuse, and while he was the incumbent of that office the bonds mentioned were executed and placed in his custody as city treasurer. Guy & Son negotiated the sale of the bonds in Chicago, where they were forwarded by-the city treasurer; but before the sale was effected Reed was superseded, and Frank Bentley was appointed as his successor. About a week after Reed surrendered the office to Bentley, the bonds were sold, and the proceeds placed in a Chicago bank to the credit of Reed, who had transmitted the bonds there. He paid Guy & Son a commission for the negotiation of the bonds, and for compensation and to reimburse himself for the commission paid to Guy & Son, he retained 3 per cent, of the proceeds, paying the balance to the city treasurer. The amount so retained was $218.79, and this sum the city seeks to recover. While the salary or compensation of Reed as city treasurer is not shown, it does appear that his claim for salary or compensation was never acted upon nor allowed by the city council. The proceeds of the.bonds belonged to the city, and neither Reed nor W. F. Reed & Co. were authorized to retain any part of the same.
It appears that W. F. Reed & Co. are bankers, and it is stated that they received the moneyas bankers; but, so far as the record shows, neither Reed nor his firm was employed by the city to negotiate a sale of the bonds or to employ others to make such sale. This work was done by Guy & Son, who claim that they represented the city in the transaction. When the funds derived from the sale of the bonds were received by the bank, W. F. Reed & Co. should have turned them over to the city, and presented any claim for commission or compensation to the city council to which they might be entitled. It may be that some portion of the salary of W. F. Reed remains unpaid, or it may be that some compensation is due to the firm for services in regard to the negotiation of the bonds or the receipt and payment of the proceeds of the sale after W. F. Reed ceased to be treasurer; but if Reed or his firm has any such claim against the city, it must be presented in writing, and allowed in the manner prescribed by the statute. (Gen. Stat. of 1889, ¶¶ 967, 971.) They cannot fix their own compensation and appropriate the city funds in payment of the same, simply because funds of the city hap pen to be in their hands. If anything is due to them, it must be obtained in the manner pointed out by the statute.
The fact that Reed had charged himself as treasurer upon the books of the city with the amount derived from the sale of the bonds will not affect his right to compensation, nor the correctness of the ruling of the court upon the demurrer. The claim for compensation must in any event be presented to the city council, and the mayor and council alone can appropriate the funds of the city to the payment of such a claim. Under the rule which governs us in considering a demurrer to the evidence, we think a prima facie showing of liability on the part of the defendants had been made, and that the demurrer to the evidence should have been overruled. The judgment of the district court will, therefore, be reversed, and the cause remanded for another trial.
All the Justices concurring.
|
[
48,
124,
-92,
-67,
-54,
96,
42,
-104,
9,
-95,
39,
115,
-23,
71,
20,
61,
-9,
121,
-44,
107,
84,
-45,
22,
99,
-38,
-109,
-21,
-35,
-79,
-19,
-28,
-41,
76,
48,
-53,
-99,
102,
-54,
-43,
124,
-50,
17,
8,
-20,
-39,
72,
52,
59,
116,
77,
113,
-54,
-13,
42,
29,
98,
-19,
44,
-17,
41,
-48,
-15,
-117,
-123,
111,
7,
18,
118,
-104,
-125,
-56,
12,
-112,
49,
1,
-24,
115,
-74,
-122,
-12,
101,
-119,
8,
98,
99,
1,
-11,
-83,
-72,
-116,
38,
-2,
-115,
-89,
114,
120,
11,
33,
-66,
-99,
113,
80,
-89,
-18,
-2,
29,
25,
100,
5,
-114,
-58,
-13,
-65,
-76,
26,
19,
-26,
-77,
18,
116,
-52,
32,
93,
102,
16,
27,
-113,
-67
] |
The opinion of the court was delivered by
Mason, J.:
Dora J. Russell instituted proceedings against George T. Williams to charge him with maintenance of her illegitimate child. A judgment was. rendered against him, and he appeals.
Objection is made on the ground that in the title of the case, in the complaint, and other parts of the record prior to the judgment, the plaintiff was described as “The State of Kansas,” instead of “The State of Kansas on the relation of Dora J. Russell.” The matter is not material. It appears that on the face of the complaint, after the jurat, the words were written: “Filed and commenced on the relation of Dora J. Russell, in the name of The State of Kansas,” the signature of the county attorney being added. But apart from this the ■character of the proceeding was obvious on the face of the papers, and the name of the complainant advised the defendant upon whose relation it was brought. No ■objection was made to the title until after the trial.
An objection is made because the complainant was allowed to testify that she thought the defendant was the father of her child. The child was born January 18, 1912. She testified that during the months of March, April and May, 1911, she had sexual intercourse with no one else. Her opinion as to the paternity of the child in view of this testimony was not important, but it was not prejudicial.
A prior complaint had been made and left with a lawyer, charging one Elliott with the paternity. The complainant explained this by saying that, having been misinformed as to the stage of her pregnancy, she at the time supposed Elliott to be responsible for her condition, but that in fact she had not had intercourse with him since February 12. The lawyer who had represented her in her contemplated proceedings against Elliott was permitted to testify that Williams came to him and asked if he represented Dora Russell; that he answered that he had done so, but the relationship had ceased; that Williams said he would be willing to pay some amount rather than be sued; that the witness replied that he would write to the complainant, and believed a settlement could be made. The objection is urged that a part of this testimony comes within the rule that an offer of compromise is not to be ac cepted as evidence of liability on the part of him who makes it. Assuming the soundness of the rule, and its application to this kind of proceeding, we think it was not violated here because the statement of the defendant was not strictly an offer of compromise, and was not made to a representative of the complainant. On cross-examination the witness was asked whether he had in his possession a complaint charging Elliott with the paternity of the child. An objection to the question was sustained. The complaining witness had testified to signing such a complaint, so the matter was not important, even if the question was within the scope of cross-examination. A physician testified that the author of a certain medical work was recognized as an authority. The defendant offered in evidence an extract from the work stating the conclusions of various observers as to the period of gestation. This is not a recognized method of proof (17 Cyc. 270), but the witness had already testified that the longest period given by the authorities was 334 days, and that was the most important part of the extract offered. Other objections to the admission and rejection of evidence are thought to go rather to its weight than to its competency.
There was evidence that the defendant accompanied the complainant to a physician, and in various ways showed interest in her condition. The court gave an instruction that the jury might take into account his conduct with regard to her, and every other fact and circumstance tending to throw light on the issue. The defendant requested an instruction, which was refused, to the effect that evidence of his having- assisted the complainant would not justify the assumption that he was the father of the child, but could only be considered as a circumstance in the case. The instruction ■asked might have been given without error, but it can not be held to have been essential to a fair consideration of the case. The court’s instruction did not give an undue effect to the evidence concerning the assistance rendered to the complainant by the defendant. The court also instructed the jury that if they found the defendant to be the father of the child they should return a verdict against him notwithstanding they might believe that the mother had had sexual intercourse with others before and after she became pregnant. It is urged that an exception should have been made to this with respect to acts of copulation close to the supposed time of conception. The medical testimony was that the child’s condition indicated a normal development, and as the complainant testified to having been otherwise continent during March, April and May, the question, was merely one of her veracity. An instruction was also given that the complainant’s character for chastity was immaterial except as an aid to determining whether the defendant was the father of her child. It is objected that this prohibited the jury from considering her unchastity as affecting her credibility. We do not think it fairly open to that construction.
Complaint is' made of the amount of the judgment.. The defendant was required to pay $600 down, and $1750 additional in semiannual installments of $50' each. He was worth something over $11,000. We do not think this court can say the amount was excessive..
The judgment is affirmed.
|
[
-80,
-24,
-84,
92,
-6,
96,
42,
120,
123,
-109,
-91,
83,
-23,
78,
4,
126,
26,
45,
81,
106,
-61,
-73,
23,
65,
-14,
-13,
-7,
-35,
-65,
93,
-26,
86,
76,
48,
-54,
-43,
98,
-62,
-127,
-44,
-114,
5,
-87,
-23,
91,
-96,
48,
121,
18,
15,
113,
-82,
-13,
40,
60,
83,
-88,
42,
15,
56,
-40,
-80,
-116,
-107,
-2,
18,
-77,
36,
-98,
-91,
88,
46,
-112,
-71,
40,
104,
115,
-74,
6,
116,
109,
-87,
8,
126,
99,
33,
61,
-29,
-88,
-104,
111,
115,
-99,
-89,
-110,
72,
73,
41,
-65,
-71,
53,
112,
39,
-6,
-4,
29,
28,
108,
9,
-117,
-106,
-71,
-113,
58,
-118,
5,
-29,
-63,
17,
97,
-57,
-16,
93,
5,
56,
-101,
-98,
-74
] |
Per Curiam:
The former decision in this case will be found in 90 Kan. 702, 136 Pac. 221. On the rehearing of the case the discussion centers principally upon the location, on the depot platform, of the mail sack over which appellee stumbled. By mistake it is said in the former opinion, “A mail sack was unloaded from the mail car of the train about six feet east of the west end of this platform” (p. 703), instead of the west end of the depot, as was intended. It was in the line between the depot and the car where passengers were reasonably expected to pass.
It is not to be inferred from the decision that 'it was not the duty of the railroad company to exercise care to keep its platform clear of obstructions, but the decision is based upon the correlative duty of the passenger to exercise reasonable care for his own protection. ' As appears by the findings referred to in the former decision, especially No. 28, there was nothing to prevent the appellee from seeing the mail sack if he had looked. The fair inference is that he did not look where he was going, and that if he had looked he would not have stumbled and fallen. Under the findings of fact, this was held to be contributory negligence which precluded his recovery. The court adheres to this conclusion and abides by its former opinion.
|
[
-80,
-4,
-43,
-97,
42,
107,
58,
-104,
101,
-75,
39,
83,
-83,
-63,
-107,
115,
-9,
47,
-15,
59,
-12,
-89,
70,
-30,
-46,
-45,
51,
-59,
18,
107,
100,
-30,
76,
97,
-118,
85,
102,
74,
69,
30,
-50,
5,
-104,
-23,
57,
-112,
40,
122,
-108,
79,
113,
-98,
-29,
42,
24,
67,
41,
44,
107,
-91,
-14,
-7,
-118,
7,
119,
6,
-93,
36,
29,
-89,
-36,
59,
-100,
17,
16,
-8,
115,
-90,
-106,
118,
97,
-5,
-123,
-30,
98,
33,
5,
-81,
-68,
-104,
46,
-14,
47,
-25,
-106,
24,
41,
37,
-105,
-67,
20,
22,
6,
-20,
-34,
77,
93,
116,
3,
-114,
-12,
-79,
-1,
96,
6,
103,
-21,
-95,
34,
100,
-52,
-90,
94,
69,
27,
-101,
-98,
-98
] |
Per Curiam:
The plaintiff sued the defendant for attorney fees. The jury returned a verdict for a sum which is fair and reasonable compensation for the services performed, and judgment was rendered accordingly. The defendant appeals.
The case was as well tried as the ordinary lawsuit, and none of the matters upon which error is assigned vitiates the result.
The action being one of quantum meruit, it was entirely proper for the plaintiff to show his professional qualifications and standing, and the testimony objected to was pertinent to those facts. The effect of the employment of other counsel on the proper size of the plaintiff’s fee was fairly presented by the evidence. The friendly relationship of the plaintiff to his client did not affect the pecuniary value of his services. The hypothetical questions were fair and not open to the hypercritical objections made to them. The amount and value in controversy were proper facts to be taken into consideration, but it was not necessary that the exact amount and value should be precisely proved. It is not fatal to.a hypothetical question that it includes the personal knowledge of the expert witness when the extent of that knowledge is proved, so that the actual basis of the witness’s opinion is in fact disclosed. The instructions were not misleading or incorrect in any important particular, and were adequate for the information of the jury.
It is not necessary to follow the defendant through his minute analysis of the proceedings. He suffered no prejudice to any substantial right, and the judgment of the district court is affirmed.
|
[
-16,
-24,
-83,
-3,
-120,
96,
58,
-38,
77,
33,
-73,
123,
-1,
-53,
28,
33,
-78,
41,
81,
98,
94,
-93,
87,
65,
-2,
-73,
59,
-63,
-79,
-20,
-26,
-35,
77,
48,
-30,
-43,
99,
-54,
-59,
80,
-54,
-124,
-71,
105,
-23,
98,
48,
115,
80,
87,
49,
-34,
115,
44,
29,
-53,
44,
60,
123,
-69,
-63,
-111,
-122,
-115,
125,
5,
-77,
39,
-100,
98,
-38,
44,
-104,
-67,
0,
-55,
114,
-74,
66,
116,
99,
-71,
-84,
98,
98,
32,
105,
99,
-8,
-116,
47,
-4,
15,
-90,
-101,
88,
-53,
13,
-74,
-65,
108,
32,
7,
122,
-12,
93,
30,
108,
9,
-114,
-42,
-77,
-113,
70,
-2,
-54,
-17,
-109,
16,
65,
-115,
106,
92,
78,
58,
-37,
-114,
-114
] |
Per Curiam:
The certificate of acknowledgment indorsed on the mortgage was sufficient to prove prima facie the execution of the mortgage. The recitals of the mortgage were sufficient to prove prima facie the execution of the note which the mortgage described and secured. Production of the note and mortgage at the trial by the plaintiff proved prima facie title in him. When the plaintiff proved record title in the mortgagor and introduced the note and the mortgage with its indorsement in evidence he proved all the allegations of his petition which were essential to sustain a judgment for foreclosure. These principles are elementary.
The plaintiff could strike out or ignore as superfluous the allegations of the petition showing how he acquired title to the papers sued on, rely on the ulti-. mate fact of ownership, and prove that fact in the manner described. The allegation of the petition that the mortgagor had left the state prior to a certain date could be material only for the purpose of forestalling a demurrer to the petition, based on the statute of limitations, and the defendant, who was a tax-title holder, could not invoke that statute. The plaintiff was not obliged to prove the allegation that the mortgagor had sold his land to another, against the defendant, who claimed title as against the mortgagor.
The tax deed evidencing the defendant’s title to the land was not five years old when the action was instituted, and was open to attack for irregularities in the proceedings on which it was based. The allegation of the reply was that an unauthorized sum was included in the redemption notice, and according to the computation presented in the defendant’s brief the redemption notice did wrongfully include the very item specified in the reply.
There is no presumption of payment in this case. The plaintiff did not lose his remedy through laches, and the defendant is not in a position to invoke that equitable doctrine.
The judgment of the district court is reversed and the cause is remanded with direction to foreclose the Plaintiff’s mortgage.
|
[
114,
124,
-127,
-81,
-54,
-32,
-86,
-70,
-16,
1,
34,
83,
119,
-62,
-108,
37,
-10,
41,
113,
120,
87,
51,
102,
73,
-14,
-77,
-63,
85,
-75,
-17,
-26,
21,
77,
-80,
-30,
85,
102,
-86,
-61,
80,
78,
-121,
-71,
101,
-15,
0,
52,
115,
64,
12,
-43,
-59,
-13,
45,
51,
71,
9,
42,
75,
-67,
-64,
-8,
-97,
-123,
127,
3,
-79,
117,
-36,
107,
-6,
-118,
-128,
57,
1,
-24,
118,
-74,
-122,
20,
11,
59,
40,
102,
98,
48,
117,
-23,
-68,
-104,
47,
124,
31,
38,
-45,
88,
11,
45,
-73,
-99,
108,
0,
6,
-10,
-18,
-123,
31,
108,
31,
-82,
-106,
-77,
31,
124,
26,
75,
-25,
-109,
-128,
96,
-52,
50,
92,
99,
89,
-37,
-114,
-77
] |
The opinion of the court was delivered by
Burch, J.:
In a petition for a rehearing it is said broadly that the facts set out in the original opinion upon which the decision is based (Gilbert v. Railway Co., 91 Kan. 711, 139 Pac. 380) are not the facts shown by the record. The decision was based on the special findings of the jury (original opinion, page 716), which could not well be falsified. But passing by this fundamental defect in the petition for a rehearing the fol lowing is a sample specification of the plaintiff’s general charge.
“In the opinion, the Court said:
“ ‘The fireman was at his post, he did see the plaintiff, he did notify the engineer, the whistle was sounded, the bell was rung, the emergency brake was applied, and everything was done which could be done to avert disaster.’
“Are these the natural conclusions to be gathered from the evidence. True, the fireman was at his post and he testified that he notified the engineer; but was the whistle sounded, were the above measures taken? All of appellee’s [plaintiff’s] witnesses testified that they were not and the jury so found in answer to special question 52.”
The ill-considered extravagance of this statement may be judged when it is pointed out that the plaintiff’s own witness, Haskett, testified that he heard the engine whistle, then the crash of the collision, and then saw the train go by, and that the jury found specially in finding 45, not printed in the original opinion, that the bell was rung and ringing at the time the engine approached the- crossing where the collision occurred, when near the crossing.
The plaintiff produced five witnesses who gave negative testimony that they “did not recollect” hearing the bell or whistle, or “did not hear” the bell or whistle j ust before the collision occurred. Two of these witnesses confessed to defective hearing. Another said he was giving no attention to the train. Another stated that the bell might have been ringing, but he did not recollect it. The fifth was not cross-examined. The positive testimony of a large number of witnesses who could and did hear, including Mr. Haskett, produced by the plaintiff, was that the alarm whistle was sounded before the collision occurred. Several of these witnesses testified to the ringing of the bell. Some of them described the peculiar shrill noise of the whistle. Mr. Haskett called it a screech. The jury, following an instruction of the court on the subject, accepted the positive testimony, as is shown beyond dispute by the finding relating to the ringing of the bell. They were not separately interrogated concerning the sounding of the whistle, but the whole matter was covered by finding 56, which was framed upon the testimony of the engineer, corroborated by the positive testimony referred to. The engineer said that when he received the alarm from the fireman that a team was about to attempt the crossing; the bell was ringing, that he applied the air immediately, grabbed the whistle and gave two or three toots and made all the alarm he could in the time he had, and that there was nothing he could have done which he did not do to prevent the accident. The jury found accordingly and the opinion stated the facts accordingly.
Finding 52 can not be perverted into a finding that no whistle was sounded at all after the whistle given 1500 feet east of Fourth street. That finding merely states what ought to have been done to avoid the accident, that is, the whistle should have been sounded when it appeared that the plaintiff was apparently going to attempt to cross in front of the engine. It must be read with finding 42, on the same subject, that the fireman, who was observing the plaintiff, should have called the engineer’s attention sooner to give the alarm by whistling when the fireman discovered the plaintiff was about to cross the track in front of the train. Finding 42 is conclusive that the fireman did call the engineer’s attention to give the alarm by whistling— but not soon enough to prevent the collision. Finding 56 summarizes what followed.
It is charged in the petition for a rehearing that an important fact was not stated in the original opinion, that is, that the plaintiff had his back turned to the train. There is no testimony in the abstract or counter-abstract that the plaintiff had his back turned to the train.
The evidence produced by the plaintiff on the subject was as follows:
“He was wearing a cap, and was standing up in his wagon, driving with his right hand, and would naturally be turned a little to the west; that his head was not turned to the west, but he was n’t looking right straight north.”
Witnesses for the defendant said the plaintiff’s head was turned in a direction variously described at from just a little northwest to west. The fireman said that in his estimation the plaintiff was looking west and away from the track. (The track ran west.) In preparing the opinion it did not seem important to canvass the evidence on this subject, because the essential fact was that the plaintiff did not look in the direction of the train. The court instructed the jury in the seventh instruction that this fact was undisputed. Full force was sought to be given to it in the opinion by the expression, “The plaintiff was oblivious of the train” (p. 715), using the expression in the sense that the train, which the plaintiff had looked for when going for his team, was extinguished from his mind. This meaning of “oblivious” is illustrated in the Century dictionary as follows:
“ -‘Oblivion is a kind of annihilation; and for things to be as though they had not been is like unto never being.’ Sir T. Browne, Christ. Mor., i. 21”
As bearing on the subject of the use made of the crossing, the plaintiff points out that the original opinion omitted to state that one man was walking behind the plaintiff’s wagon toward the crossing. This man, however, had only reached the switch track when the collision occurred and consequently did not tend to crowd the place, which was in full view of the trainmen for a long distance, as described in the original opinion on page 717.
The result is that the facts stated in the original opinion need to be neither corrected nor supplemented.
The plaintiff expresses surprise because the decision in the Baker case (Railway Co. v. Baker, 79 Kan. 183, 98 Pac. 804) is approved while the judgment of the district court is reversed. The material portions of the opinion in the Baker case are quoted in the original opinion and speak for themselves. The distinction between the facts of that case and of this one, in all material particulars, was pointed out. Then the principle underlying the decision in the Baker case was applied to this one, and the court is satisfied with the result.
Although the district court instructed the jury (in accordance with the fireman’s testimony) as shown in the original opinion beginning at the bottom of page 713, the fireman ought to. have notified the engineer sooner, and the whistle ought to have been sounded, as the jury found. The failure to do this constituted negligence on the part of the defendant which would warrant, recovery except for the plaintiff’s own negligence. But such failure was not wantonness. As stated in the original opinion, the utmost the jury could say was that the fireman’s delinquency consisted in not sooner bringing about an alarm by means of the whistle. But when he saw that the plaintiff was leaving a place of safety and was “driving into the train,” he either was ringing or then rung the bell himself, and he did notify the engineer, who at once sounded the whistle, applied the emergency brakes, and did everything possible to avert the' collision which the notification called for. Consequently the findings of fact forbid the inference of wantonness.
Other matters contained in the petition for a rehearing do not require discussion, and it is denied.
|
[
-80,
120,
-60,
-82,
42,
-32,
42,
-38,
97,
-127,
-89,
115,
-83,
-61,
17,
39,
-10,
45,
-47,
35,
86,
-110,
23,
3,
-46,
-45,
115,
-123,
-75,
-50,
-10,
95,
77,
50,
-54,
85,
102,
75,
-43,
80,
-122,
63,
-23,
-31,
57,
16,
52,
120,
-44,
79,
21,
-38,
-13,
46,
24,
-62,
105,
41,
107,
-71,
-64,
121,
-114,
71,
125,
0,
35,
54,
-98,
7,
88,
28,
-112,
53,
1,
-8,
115,
-92,
-127,
-43,
33,
-87,
12,
-26,
98,
1,
29,
43,
-84,
-88,
39,
2,
15,
-89,
-78,
40,
67,
37,
-106,
-99,
61,
80,
39,
126,
-23,
21,
94,
100,
3,
-49,
-74,
-111,
87,
6,
-106,
33,
-21,
-79,
22,
96,
-52,
-72,
92,
69,
115,
-101,
-98,
-66
] |
The opinion of the court was delivered by
Burch, J.:
In the season of 1911 the plaintiff, Hodges, grew a crop of watermelon seeds and in November, 1911, delivered it to the defendant under a contract the material portions of which follow:
“It is further mutually agreed that upon delivery of the crop it is to be carefully weighed and tested. Any necessary remilling is to be done by D. M. Ferry & Co., at their expense. Payment is to be made only for such seed as they consider sufficiently clean, bright and vital for Seedman’s use, no credit being given for dirt, damaged or poor seed which has to be removed. In all cases the screenings and culls are to remain the property of the party who separates them from the crop. It is further mutually agreed that if the crop as delivered is impure through fault of the grower or in any other respect is, in the judgment of D. M. Ferry & Co., unfit for Seedman’s use and can not be made fit without an unreasonable amount of recleaning or handpicking, D. M. Ferry & Co. may refuse to accept it in fulfillment of this contract. ... In consideration of the faithful carrying out of the provisions of this agreement on the part of said G. W. Hodges and for his services in the growing and delivering said seeds, D. M. Ferry & Co., hereby agree to pay him at the rate of 12c per pound for all the seed satisfactory to said D. M. Ferry & Co. which he may deliver in accordance with this agreement in excess of the Stock Seed furnished him, said payment to be made immediately upon the receipt of such seed and the ascertaining by said D. M. Ferry &• Co. that it is vital and fit for seed purposes.”
The seeds were rejected. In an action to recover the compensation stipulated in the contract the plaintiff prevailed and the defendant appeals.
The court interpreted the contract as providing for payment for such seeds as were sufficiently clean, bright, and vital for seedsmen’s use, payment to be made as soon as the defendant ascertained the fact, and instructed the jury that the principal question for them to determine was whether or not the seeds were sufficiently clean, bright, and vital for seedsmen’s use.
The contract provided that payment should be made, not for such seeds as were sufficiently clean, bright, and vital for seedsmen’s use, but for such seeds only as the defendant considered of that character. The right was expressly reserved to reject the crop, not if it was unfit for seedsmen’s use, but if in the judgment of the defendant it was unfit. The agreement to pay was not for all seeds which were clean, bright, and vital, but for all seeds which were satisfactory to the defendant. The only provision of the contract in which a reservation of this kind was not inserted was the clause relating to time of payment. Since the condition upon which any payment depended was already fixed it was not necessary that it should be repeated there, and acceptance of and payment for the crop were left to the consideration, judgment, and satisfaction of the defendant. It follows that the contract was misinterpreted and the case was sent to the jury on a wrong theory.
The contract belongs to the class considered in the case of Hollingsworth v. Colthurst, 78 Kan. 455, 96 Pac. 851.
“Parties to a contract may lawfully stipulate that performance by one of them shall be to the satisfaction of the other. ... If such a contract be made, the party to be satisfied is the judge of his own satisfaction, subject to the limitation that he must act in good faith. He should fairly and candidly investigate and consider the matter, reach a genuine conclusion, and express the true state of his mind. He can not act arbitrarily or capriciously, or merely feign dissatisfaction. The application of these principles is not limited to transactions involving personal taste and preference.” (p. 456.)
The actual character of the seeds, whether clean, bright and vital, according to some standard of seeds-men, or not, was not the matter to be determined, and was not even pertinent to the issue, except in connection with proof of bad faith.
It will be observed that the defendant’s seed-growing contract has been materially changed since the decision in the case of Ferry v. Ballinger, 8 Kan. App. 756, 60 Pac. 824.
Strangely enough, the court permitted the jury to be interrogated specially concerning whether or not the defendant acted in good faith in rejecting the seeds. The answer was, “We don’t think they did.” This answer might well result from the wrong interpretation placed on the contract by the court in the instructions given, and from the failure of the court to instruct on the subject of candor and good faith in the exercise of consideration and judgment respecting the quality of the seeds and on the subject of the genuineness of the defendant’s dissatisfaction with them. Besides this, the court rejected evidence material to the question propounded to the jury.
After receiving the seeds the defendant proceeded to make a germination test by methods long in use, which were described in detail. Only forty per cent of the samples sprouted. The seeds were then remilled, and three samples of the clean product were tested, which showed a vitality of fifty-six per cent, fifty-four per cent, and fifty-four per cent, respectively. In March, 1912, twenty-six samples were tested, which showed an average vitality of fifty and two-fifths per cent. Check samples employed in making the test showed a vitality of from ninety-four to ninety-six per cent. The average for watermelon seeds generally is, according to the experience of the defendant, eighty-six per cent, and the defendant requires a vitality of at least seventy-five per cent before it considers watermelon seeds merchantable for seed purposes. In March, 1912, the defendant sent samples of the seed to the botanist in charge of the seed laboratory of the United States department of agriculture, together with the following letter:
“March 15, 1912.
“Mr. Edgar Brown, Botanist in charge of Seed Laboratory, U. S. Department of Agriculture, Washington, D. C.
“Dear Sir: — Under another cover we are mailing you today two samples, No. 1 and No. 2, of watermelon seed, taken from an identical lot number 64480, and shall be pleased to have you make a germination test and report to us the result at your earliest convenience. If there is any charge for this work, we shall be glad to remit on receipt of your bill.
Respectfully, D. M. Ferry & Co.”
The plaintiff was duly advised of this action, and portions of the samples sent to the government laboratory were sent to the plaintiff. In response to the letter quoted the defendant received the following letter :
“United States Department of Agriculture, BUREAU OF PLANT INDUSTRY. .
JFL Seed Laboratory.
Washington, D. C., April 3, 1912.
“D. M. Ferry & Co., Detroit, Mich.
“Final report of germination test of seed received March 18, 1912:
“Test number 146466, sender’s mark No. 1, name of seed Watermelon 64480. Duration of test in days, 8; germination per cent, 54.5%.
“Test number 146467, sender’s mark No. 2, name of seed Watermelon 64480. Duration of test in days, 8; germination per cent 56.5.
“Delay in receiving reports can be saved by submitting your samples to our Branch Seed Laboratory, Agricultural Department Station, Lafayette, Indiana.
E. Brown,
Botanist in charge of Seed Laboratory.
“The name of the United States Department of Agriculture must not be used for advertising purposes in connection with this report.”
The court refused to allow this letter to be read in evidence, and refused testimony that the defendant considered the percentage of vitality stated in the letter to. be too low to be acceptable. Both were relevant to the question of the good faith of the defendant in rejecting the seeds. The letter was not, of course, admissible as evidence of the actual vitality of the seeds.
The judgment of the district court is reversed and the cause is remanded for a new trial.
Mr. Justice Mason not sitting.
|
[
-32,
124,
-99,
-115,
26,
106,
106,
-38,
88,
-85,
39,
87,
-7,
87,
20,
73,
-30,
125,
84,
107,
-44,
-73,
3,
-32,
-38,
-13,
-53,
-59,
61,
109,
-12,
94,
77,
52,
-126,
-111,
-26,
-62,
64,
88,
-114,
7,
-87,
105,
-39,
82,
52,
57,
114,
67,
69,
-98,
-5,
46,
29,
-57,
45,
40,
-21,
61,
81,
-7,
43,
13,
127,
30,
-110,
98,
-108,
-125,
-40,
110,
-112,
49,
0,
-32,
91,
-76,
-122,
84,
11,
-103,
24,
114,
102,
0,
4,
-19,
-38,
-120,
46,
-1,
13,
-26,
-108,
120,
10,
69,
-66,
-99,
106,
22,
-90,
126,
-37,
-99,
-115,
-19,
3,
-121,
-44,
-125,
-85,
-68,
-102,
9,
-21,
-93,
51,
101,
-49,
-94,
92,
69,
118,
-109,
-97,
-41
] |
The opinion of the court was delivered by
Porter, J.:
This is an action to quiet title to the same land and involves the construction of the same will considered in the case of Williams v. Bricker, 83 Kan. 53, 109 Pac. 998, decided in 1911. That was an action by a vendee to recover from the vendor money for the failure to comply with an agreement to furnish a marketable title. It was there held that inasmuch as the title turns upon questions about which courts might entertain different opinions, it was not a marketable title, but the court refrained from deciding whether or not the title was good, for the reason that the persons who might be interested as possible claimants were not parties to the action.
While the former action was pending Bricker, the vendor, who was the defendant, sold and conveyed the land to J. M. Bullock, who subsequently brought this action, joining as defendants all the persons in being who could possibly claim any interest in the land as heirs or devisees of Charles L. Wiltberber, deceased. The real estate was owned by the testator at the time of his death. He left as his heirs at law his widow and the four children named in the third paragraph of the will.
It is conceded that in the second paragraph of the will the testator devised to his wife a life estate in all his property. The whole controversy arises over the construction of the third and fourth paragraphs of the will, which read:
“Third: After the death of my said wife, it is my will that all of my property, both personal and real, wherever situated, being at present in the state of Kansas, Illinois and South Dakota, shall be divided equally among my four children, namely: Walter 0.' Wiltberger, Ella L. Wiltberger, Frank L. Wiltberger and Dora A. Wiltberger.
“Fourth: If any of my said children shall die before my wife, Emoretta A. Wiltberger, then it is my will, that the share which would go to my deceased child or children if living, shall be divided among his or her children in equal parts; and if any of said children shall die without issue, prior to the death of my said wife, then it is my will that his or her share, shall be divided equally among my children then living, or if any of them be dead, then, his or her share, equally among their children.”
After his death and the probate of the will the widow and the four children named in paragraph three joined in a conveyance to Mr. Bricker, the grantor of the plaintiff. The defendants in the present action are the widow of the testator, who is still living; the widow and children of Frank L. Wiltberger, who died since making the conveyance; Walter O. Wiltberger and his wife and children; and Ella L. and Dora Wiltberger, who are still unmarried. The district court heard the case upon an agreed statement of facts and rendered judgment against the plaintiff, holding that the four children of Frank L. Wiltberger, deceased, take as remaindermen an undivided one-fourth interest in the real estate after the expiration of the life estate devised to the widow of the testator, and holding also in favor of the children of Walter O. Wiltberger to the extent of another undivided one-fourth interest contingent upon the death of their father before that of the life tenant. The plaintiff appeals from the judgment, contending that his title should have been quieted as against all the defendants.
The first point urged is that “paragraph three gives to the four children of the testator a fee simple title with full power of disposition in language free from ambiguity, and therefore paragraph four is repugnant to paragraph three and void.” The cases relied upon in support of this contention are McNutt v. McComb, 61 Kan. 25, 58 Pac. 965, and the authorities cited in the opinion in that case; also Holt v. Wilson, 82 Kan. 268, 108 Pac. 87. While this contention was urged in the briefs in the case of Williams v. Bricker, supra, it was not passed upon in the opinion or referred to, for the reason that the only point in that case, was whether the questions involved sufficient doubt and uncertainty to render the title unmerchantable. The contention therefore is fairly before us for determination.
In McNutt v. McComb, supra, the language used by the testator in the first clause was substantially as follows:
' “I hereby devise and bequeath unto my beloved wife, Lucinda Burke, ... all my estate, real, personal and mixed.”
This was held to create an uncontrolled power of disposition of all the real estate, vesting in the widow an estate in fee simple. In the second clause the testator attempted to direct that at the death of his wife whatever might then remain of his estate be divided between his three children (naming them), and this clause’ was held void because it contained directions inconsistent with the absolute interest vested in the widow by the first clause. In the opinion the case of Williams v. McKinney, 34 Kan. 514, 9 Pac. 265, was distinguished by the fact that there, in the same sentence in which the testator made the bequest to his wife of all the residue of his estate, he also made a “bequest” that at his death the property should go to the testator’s three children. In the case at bar the two provisions appear in separate clauses in the same way as in the will in McNutt v. McComb, supra. To that extent at least the cases are parallel. We think, however the general rule is that the arrangement of the terms is not regarded as controlling, although it is often considered as a circumstance by courts in attempting to determine the intent of the testator.
It is the testator’s intention which must always control in the construction of a will, and this must be gathered from the language of the entire will interpreted by the application of legal principles. (Hawkins v. Hansen, ante, p. 73, 139 Pac. 1022, and ante, p. 740.) Sometimes technical rules must be applied because the intention is obscured by vague or doubtful expressions. (Safe Deposit Co. v. Stich, 61 Kan. 474, 478, 59 Pac. 1082; Holt v. Wilson, 82 Kan. 268, 108 Pac. 87.) Techincal rules of construction ought never to be resorted to where their application defeats the manifest intention of the testator.
In the present case the testator begins the paragraph in which he states his intention respecting the division of his property among his four children • with the qualifying expression: “After the death of my wife.” In other words, his property was not to be divided among his four children until after that event. Is there anything repugnant therefore in that part of the subsequent provision which reads that “If any of my said children shall die before my wife . . . then it is my will, that the share which would go to my deceased child or children if living, shall be divided among his or her children in equal parts” ? On the contrary, it seems entirely consistent with the preceding clause, and manifests an intention that the four children were not to take unless they survived the widow. Having given to them this contingent estate, it was still within the power of the testator to say what should become of his estate in the event any or all of the four persons named in the second clause should no.t survive the life tenant. For the same reasons it can not be said, we think, that it was inconsistent or repugnant for him to provide in the fourth clause that if any of the four children should die without issue prior to the death of the testator’s children then living, or if any of them be dead then his or her share should be divided equally among their children.
Holt v. Wilson, supra, is not a parallel case. It would be more in point if the fourth clause of the will in this case had attempted to dispose of the remainder in case of the death of any of the testator’s four children after the death of the testator’s wife. The subsequent language of the will in Holt v. Wilson, which was. held to be repugnant, provided as follows:
“ ‘But if the said William N. Holt shall die without issue, either before or after the first legatee’s estate expires, then and in that case, I direct that the whole of said estate be and the same is bequeathed and given to Martha M. Wilson or her heirs.’ ” (p. 269.)
Moreover, the subsequent provisions in that case considered together contained vague or doubtful expressions. The rule stated in 2 Underhill, Law of Wills, § 689, was applied, as follows:
“.‘Where property is given in clear language sufficient to convey an absolute fee, the interest thus given shall not be taken away, cut down or diminished by any subsequent vague and general expressions.’ ” (p. 273.)
In the opinion it was also said:
“Mr. Redfield in the following language states the rule as a qualification of the general rule that the intention of the testator must prevail: ‘A clearly expressed intention, in one portion of the will, is not to yield to a doubtful construction in any other portion of the instrument.’ (1 Redfield, Law of Wills, p. *433).” (p. 273.)
There are no vague, ambiguous or doubtful expressions in the fourth clause, so that if we simply follow the general rule and construe the whole will together, his intention is manifest.
In Coleman v. Coleman, 69 Kan. 39, 76 Pac. 439, the will read substantially as follows:
“ T give and bequeath to my children [naming them] . •. '. all of my estate. I also desire that none of my real estate .shall be sold . . . until the youngest surviving child shall arrive of age, and in case either one of them shall die without heirs or legal representatives of his own, the survivors shall take his portion of the said estate equally.” (p. 44.)
It was held that “the remainder over to the surviving children in the event of the death of one of them is consistent with the entire will.” (p. 44.)
In Bunting v. Speek, 41 Kan. 424, 21 Pac. 288, the rule was recognized that courts will favor the vesting of estates and a vested remainder rather than a contingent remainder, and that no remainder may be construed to be contingent “which may, consistently with the words used and the intention expressed, be deemed vested” (syl. ¶ 2) ; and it was said that to create a contingent remainder “the intent so to do must be ex pressed in words so plain that there is no room for construction” (syl. ¶ 1). In that case the testator, after bequeathing all of his estate, real and personal, to his wife during her lifetime, added the words: “and then they are to descend to my legal heirs. “A marked distinction between that will and this consists of the absence in the third paragraph in this will of any express words devising or bequeathing the estate to the four children. In substance, the language is, “After the death of my wife I direct that my estate shall be divided equally among my four children.” Of course, the contention of appellants is that the children took a vested remainder; that only the enjoyment of their estate was postponed until the death of the widow. In the great wilderness of cases upon the subject it can not be doubted that many may be found which support that construction, but it seems to us clear that the intention of the testator was that his estate should be kept intact until the death of his wife, and was then to be divided among his children and the heirs of such as may then be deceased.
The North Carolina court had before it for construction a will with substantially the same provisions. In Bowen v. Hackney, 136 N. Car. 187, 48 S. E. 633, 67 L. R. A. 440, the testator devised the property to his wife for life, followed in a subsequent part of the will with a direction that at the expiration of the life estate of his wife the property should be equally divided among his children, share and share alike, “the representatives of such as may have died to stand in the place of their ancestors.” (p. 188.) The court held it to be the manifest intention that the gift in the subsequent item or clause should take effect finally and absolutely according to the state of his family.as it existed at the death of his wife, and that a condition precedent was annexed to the gift which would prevent its vesting in any child unless he or she should survive the life tenant. It was held, therefore, that each of the' testator’s children took contingent remainders, the contingency be ing that they should survive their mother; and, “failing in this, as to any one or more of them, the remainder vested in his or their representatives by purchase” (p. 192), citing Whitesides v. Cooper, 115 N. Car. 570, 20 S. E. 295, and that this would be the limitation of concurrent fees to take effect alternatively, or as substitutes one for the other; citing Fearne,' Contingent Remainders, 3d Am. ed., p. 373. The opinion cites and relies upon Hunt v. Hall, 37 Maine, 363, where the limitation was in substantially the same language as the will in the case at bar. The language was:
“After the decease of my dear wife, my will is that my executor hereafter named cause an equal division to be made among all my children and the heirs of such as may then be deceased.” (p. 364.)
The supreme court of Maine said:
“The persons who are to take are not those who are living at the death of the testator. The division is not then to take place. This is to be done at a subsequent and uncertain period. If the estate were to be construed as vesting at the death of the testator, an heir might convey by deed his share of the estate; and if he should decease before the termination of the life estate, leaving heirs, his conveyance would defeat the estate of such heirs. This would be against the express provisions of the will, which provide that the estate shall be divided ‘among his children and the heirs of such as may then be deceased.’ By the terms of the will, the estate is not to vest until after the death of the widow, and then the division is to ensue. Till then there is a contingency as to the persons who may take the estate.” (p. 366.)
In the opinion in Williams v. Bricker, 83 Kan. 53, 109 Pac. 998, it was said:
“The will of Louis Wiltberger clearly expressed the purpose that his widow should take a life estate in the real property in question, that at her death it should pass to such of his four children as should then be living and to the children of any of the four who had died, the grandchildren to take collectively the shares that would have gone to their respective parents. . . . When the deed was made the widow had a life estate, the four children a vested remainder (subject to be devested by their dying before the life estate ended), and the children of these children (there were at least two of them then in being), a contingent remainder.” (P- 57.)
It would have perhaps been more accurate' to have said that both the children and grandchildren take contingent remainders.
Haward et al. v. Peavey, 128 Ill. 430, 21 N. E. 503, seems to be a parallel case. There the testator devised all his estate in trust for the support of his widow, and provided that on her death or marriage the residue of the estate should be divided equally among his five children, “or such of them as should then be living, or the lawful issue of such as might be dead.” In the opinion it was said:
“It is plain that in the present case the estate devised was, so far as Robert Haward was concerned, subject to a contingency, viz., his being alive at the time the particular estate should be determined by the death or remarriage of the widow. Whether this contingency constituted a condition precedent or subsequent must be determined by the language of the will.” (p.- 439.)
The court held that, construing the entire language of the will, the devise was not to Robert Haward, nor to him and his three brothers, but only to such of the four as should be alive at the death or remarriage of the widow, and it was said in the opinion that if one or more of the sons named had died before the death of the widow it would have been doing violence to -the language óf the will to hold that any estate was thereby vested in them. They would have been excluded by the very terms of the will from the number of those named as’beneficiaries. It was therefore held that the persons to whom the estate would eventually go, being wholly uncertain and dubious during the existence of the particular estate, the contingency was a condition precedent to the vesting of the estate, and that until the condition happened the estate was necessarily contingent.
To the same general effect are Nash v. Nash & others, 94 Mass. 345; Thomson v. Ludington, 104 Mass. 193; Cummings et al. v. Hamilton, 220 Ill. 480, 77 N. E. 264; Allison v. Allison, 101 Va. 537, 44 S. E. 904; 63 L. R. A. 920; Wilson, &c., v. Bryan, &c., 90 Ky. 482, 14 S. W. 533.
From what has been said we think it follows that the appellant can not rely upon the doctrine of merger. We adhere to what was said in the opinion in Williams v. Bricker, supra, upon this question. The grandchildren, who are the appellees, were not parties to the conveyance. As said in the former opinion, quoting from Moore v. Luce, 29 Pa. St. 260:
“Merger takes place when a greater and a less estate come together in the same person, and when there is no reason for their longer existence as separate estates. The doctrine has its foundation in the convenience of the parties interested, and therefore whenever the rights of strangers, not parties to the act that would otherwise work an extinguishment of the particular estate, require it, the two estates will still have a separate continuance in contemplation of law.” (p. 263.)
Here there is a reason for'their longer existence as separate estates. The doctrine of merger, which is largely a matter of theory, ought not to be employed to defeat the intent of the testator and to extinguish, as it would in this case, the rights of the grandchildren, who are strangers and not parties to the act relied upon as merger.
“If the inheritance is given to the donee of the particular estate by the same instrument creating the contingent remainder, the estates will not merge so as to defeat such remainder.” (16 Cyc. 656.)
The judgment is affirmed so far as it concerns .the construction of the will, but must be modified in one respect. Until the death of the testator’s wife there is a contingency as to the persons who may take the estate, and so much of the judgment as attempts to quiet the title of grandchildren whose parents are still living is erroneous. It will be modified to this extent.
|
[
-48,
104,
-35,
92,
10,
96,
42,
-38,
113,
-24,
36,
83,
73,
89,
21,
121,
-77,
77,
-47,
106,
-10,
-73,
63,
-95,
-46,
-77,
-13,
-51,
-80,
76,
38,
70,
76,
32,
10,
85,
-26,
-54,
73,
84,
-114,
0,
10,
76,
-39,
68,
52,
59,
86,
95,
81,
-65,
-77,
46,
25,
-62,
-19,
46,
-85,
61,
80,
-72,
-85,
-121,
127,
18,
-111,
2,
-104,
-59,
72,
-120,
-112,
49,
9,
-24,
83,
38,
6,
-12,
9,
-119,
-119,
-30,
103,
51,
77,
-17,
-24,
-104,
15,
-21,
-123,
-89,
54,
88,
3,
33,
54,
-100,
121,
32,
66,
-2,
-18,
21,
28,
-84,
13,
-113,
-42,
-93,
43,
120,
-104,
67,
-13,
-125,
33,
113,
-53,
34,
93,
71,
116,
19,
-114,
-12
] |
The opinion of the court was delivered by
Porter, J.:
The action in the district court was on a promissory note. The defense was a failure of consideration; the defendants recovered a judgment for costs, from which the plaintiff has appealed.
The note was executed by the defendants November 21, 1906, payable to the order of J. Crouch & Son, in payment of a stallion purchased for breeding purposes. The petition alleged that the note' was endorsed in due course before maturity to the National Fowler Bank of LaFayette, Ind., and that the bank endorsed it to the plaintiff for full value. The answer alleged that the plaintiff was not an innocent purchaser, but took with full knowledge of all defenses as against the original payee, and alleged a failure of consideration by reason of the horse failing to fulfill the warranty given by Crouch & Son, and also their failure to furnish and deliver to the defendants, as agreed, a certain medal won by the horse at the Paris Horse Show, and by reason of their failure to furnish to the defendants a breeding harness and hobbles as part consideration for the note.
The note was endorsed by J. Crouch & Son to the bank before maturity but was purchased by the plaintiff from the bank after maturity. The jury made findings to the effect that it was not endorsed to the bank in due course of business, and that the bank took the note with notice of the failure of the consideration.
Some complaint is made of error in the rulings on the admission of evidence. A quite liberal cross-examination of the witnesses for the plaintiff was permitted and the cross-examination of the defendants’ witnesses was restricted to some extent, but we think no prejudice resulted. There was a sharp conflict in the evidence as to whether the bank purchased in due course and without notice of the defenses; but as there was evidence to sustain the findings of the jury in this respect, that issue may be regarded as settled and determined against the plaintiff.
At the time of the purchase of the horse the parties entered into the following agreement:
“Hoof No. 76.
“We have this day sold the imported Percheron Stallion Puteaux, No. 41461, to Messrs. Campbell & Eichardson, of Centerville, Kansas, and we guarantee the said stallion to be satisfactory, sure breeder, provided the said stallion keeps in as sound and as heálthy condition as he now is and has proper care and exercise. If the said stallion should fail to be a satisfactory sure breeder with the above treatment we agree to take said stallion back, and the said Campbell and Eichardspn agree to accept another Imported Percheron Stallion of equal value in his place, provided the said stallion, Puteaux, No. 41461, is returned to_ us at Sedalia, Missouri, in as sound and healthy condition as he now is by June 1, 1908.
(Signed) J. Crouch & Son.
Accepted W. S. -Campbell. •
Geo. A. Eichardson.
“Dated at Sedalia, Missouri, this 2nd day of Nov. 1906.”
The answer alleged that the horse was not a sure and satisfactory breeder; that his colts proved not to be uniform in size, shape and color and were in many respects inferior. In order to avoid the provision that the horse should be returned-if unsatisfactory on or before June 1, 1908, the answer alleged that “at the time said warranty was made” the defendants “objected to the time fixed within which complaint should be made, and the horse returned in case he should not come up to said warranty, and at the time said Crouch & Son agreed verbally with these defendants that in case there were not colts sufficient foaled by June 1, 1908, the time fixed in said' warranty, so that these defendants could tell whether such stallion was a satisfactory and sure breeder, then they, Crouch & Son, would extend the time in which complaint should be made and the horse returned in case he was not satisfactory.”
The answer further alleged that a short time prior to June 1, 1908, it became apparent to defendants that there would not be enough colts foaled by June 1 to test the horse and that the defendants wrote to Crouch & Son asking for an extension of the time, “and feeling certain that the said Crouch & Son would extend the time of said warranty, as they had verbally agreed, to do; and not having colts enough foaled to test said horse . . . allowed said June 1, 1908, to pass without making complaint or returning said horse.” It was also alleged that if Crouch & Son had not by their verbal promise caused defendants to be lieve that the time would be extended, the defendants would have returned the horse on or before June 1.
The reply set up the failure to return the stallion according to the terms of the agreement and alleged that the stallion died while in the hands of the defendants more than a year after June 1, 1908.
On the trial the court permitted defendants to introduce evidence showing that at the time the memorandum was made the defendants objected to' the limit fixed therein for the return of the horse, and that a verbal agreement was then entered into as alleged in the answer, and the jury were instructed in substance that if the defendants proved a verbal arrangement as alleged in the answer it would be binding. Manifestly this was error. Under the facts set up in the answer the evidence was not admissible. If the defendants had any objections to the provisions of the written contract the writing should have been changed before it was executed. The verbal agreement relied upon expressly contradicts and varies the terms of the instrument. The authorities relied upon by the defendants are Babcock v. Deford, 14 Kan. 408, and Hurless v. Wiley, 91 Kan. 347, 137 Pac. 981; also 17 Cyc. 648, 693. None of these authorities sustain the contention. In Hurless v. Wiley, supra, parole evidence was held competent for the purpose of showing a consideration for a written agreement made subsequent to the original agreement. It was said in the opinion:
“Such matters are ordinarily allowed to be shown by oral evidence, where they do not contradict the terms of the written instrument. (17 Cyc. 648, 693; Note, 17 L. R. A. 274; Note, 25 L. R. A., n. s., 1194.)” (p. 348.)
Nothing said in the opinion in Babcock v. Deford militates against the rule, which is axiomatic, that oral evidence is not competent to contradict or vary the terms of a written instrument. That case is cited with numerous others in the opinion in Evans v. McElfresh, 85 Kan. 389, 116 Pac. 612, where it was ruled in the syllabus as follows:
“Where a writing is incomplete and shows on its face that all the stipulations between the parties were not' included in it, parol proof -of the omitted parts of the contract which are not repugnant to or inconsistent with the written portions may be introduced to supplement that which is written.”
In the present case the writing is not incomplete nor does it show on its face that all the stipulations were not included in it, and moreover the parol proof which the court permitted is repugnant to and directly in conflict with the provisions of the written contract.
The authorities upon which the defendants rely go no further than to recognize the rule that a parole contract may be entered into between the parties contemporaneously with a written.agreement, provided it is separate and independent from, and in no respect alters or contradicts the written agreement. (Babcock v. Deford, supra; Schoen v. Sunderland, 39 Kan. 758, 18 Pac. 913.) Here the answer admits that at the time the written agreement was entered into the defendants were dissatisfied with its terms and objected to one of its provisions; and in substance it is-alleged that thereupon a verbal agreement was made- which was to be substituted for the written provision, and that with such verbal arrangement the instrument- was ■executed. This contemporaneous verbal agreement is in direct conflict with the terms of the written agreement. The only purpose of offering proof of it was to ■contradict and vary the terms of the writing.
The defendants introduced in evidence the contract, which by its terms provided that if the stallion was not as represented they agreed to return him to Crouch & Bon within a specified time and to accept another horse' in his place. On the trial it was admitted, that the horse had not been returned and that he died while in possession of the defendants long after the time speci fled in the contract for his return in case he proved unsatisfactory. The contract having absolutely fixed the defendants’ remedy in case the horse proved not to be as represented, the defendants failed in their proof and the court should have sustained a demurrer to their evidence as to failure of the warranty. (Furneaux v. Esterly & Son, 36 Kan. 539,13 Pac. 824; Aultman v. Wier, 67 Kan. 674, 74 Pac. 227; Campbell v. Masonic Lodge, 76 Kan. 400, 92 Pac. 53.)
It was competent for the parties to agree how the purchaser should take advantage of any breach of warranty and what the rights of the parties should be in case the horse proved unsatisfactory. It seems to be well settled that such an agreement on the part of the purchaser is binding, and that he can not ignore the part of the contract which obligates him to return the property if it prove unsatisfactory after the stipulated test. (Birch v. Kavanaugh Knitting Co., 165 N. Y. 617, 59 N. E. 1119; Nichols-Shepard Co. v. Rhoadman, 112 Mo. App. 299, 87 S. W. 62.) Cases will be found where the purchaser is given the privilege of returning the property within a certain time if it prove unsatisfactory, but where he makes no agreement that he will pursue that remedy. In such cases it is held that the privilege to return the property is but a cumulative remedy. (17 Dec. Dig., title “Sales,” § 426.) In the present case the warranty was in respect to a matter the absolute truth of which it might not have been possible for the seller to know, and the contract seems to have been made upon the theory that only subsequent developments would determine absolutely whether or not the horse would.be satisfactory; so the agreement gave certain rights to both seller and purchaser, and the seller had the right to insist upon the provision requiring the horse to be returned within a specified time and another horse taken in its place.
In the case of Brown v. Russell & Co., 105 Ind. 46, 4 N. E. 428, it was said:
“Of course,- it was competent for the parties to contract with each other in relation to the extent, terms and conditions of the warranty, and to impose such limitations and restrictions thereon as they might mutually agree upon.” (p. 52.)
To the same effect see Bomberger, Wright & Co. v. Griener, 18 Iowa, 477, 480, and Oltmanns Bros. v. Poland, (Tex. Civ. App. 1912) 142 S: W. 653.
By failing to return the horse in accordance with the provisions of the contract the defendants are precluded from relying upon the breach of warranty of the breeding qualities of the horse. Under proper pleadings they would have been entitled, however, to offset against the note whatever damages the proof showed they sustained by the failure to be furnished with the medal as agreed to and also any damages sustained by the failure to be furnished with a breeding harness and hobbles. Just what damages they could have shown as a result of the failure to furnish the medal, which they allege Crouch & Son represented would aid them in advertising the horse and obtaining customers for his service, is not at all clear, since the horse turned out to be an unsatisfactory breeder. Moreover, in their answer the defendants did not seek to recover, as an offset against the note, any damages for the failure to furnish these things. No specific damages in this respect were either alleged or ‘proven. No evidence was offered upon which the jury could have made a finding of any damages sustained by the breach of the oral agreement to furniáít the medal or to furnish the harness and hobbles. While it might have been difficult to show the value of such a medal, it would obviously have been an easy matter to prove -the value of the harness and hobbles, and this would have been the measure of damages for the breach. We have, therefore, a case with mere proof of the violation of a contract, without any evi dence as a basis for the jury to compute compensatory damages, and where the party injured by the breach' would have been entitled, on the evidence, to nothing more than nominal damages. Ordinarily the court will not order a new trial for the purpose of enabling a party to prove nominal damages unless it be essential to the determination of some legal right clearly involved. (Roberts v. Minneapolis Thresh. Mach. Co., 8 S. Dak. 579, 67 N. W. 607, 59 Am. St. Rep. 777, 781; 2 Encyc. Pl. & Pr. 535.)
In the state of the pleadings, neither the allowance of nominal damages nor of actual damages would have the effect of carrying the costs, for the reason that the defendants have denied all liability upon the note, and have made no tender or offer to pay the amount of the note less their damages; and manifestly the costs of another trial would be far in excess of any damages that could be recovered for the value of some straps and buckles and a brass medal. In fact, it may be assumed that the defendants would not avail themselves of an opportunity to try out those questions if a new trial were ordered.
The judgment will therefore be reversed and the cause remanded with directions to render judgment against the defendants for the amount due on the note.
|
[
119,
116,
80,
93,
74,
96,
42,
-102,
69,
-63,
55,
83,
-55,
67,
4,
105,
-26,
45,
68,
106,
70,
-77,
95,
112,
-62,
-14,
-39,
93,
49,
109,
-28,
87,
77,
48,
-118,
-43,
-26,
-126,
-127,
92,
-114,
33,
27,
-52,
-7,
-24,
48,
107,
21,
72,
97,
-81,
-61,
38,
60,
-37,
105,
44,
107,
45,
-64,
-15,
-69,
-121,
29,
22,
-110,
96,
-122,
71,
90,
46,
-112,
49,
1,
-23,
82,
-74,
-114,
116,
41,
41,
9,
102,
106,
33,
85,
-49,
6,
-56,
39,
94,
-113,
-89,
-112,
92,
35,
37,
-106,
-99,
52,
83,
-121,
-4,
-5,
21,
29,
40,
7,
-34,
-106,
-125,
46,
126,
-112,
15,
-1,
-91,
17,
117,
-113,
-16,
92,
87,
56,
-101,
-122,
-70
] |
The opinion of the court was delivered by
Benson, J.:
This action is to recover money paid by the defendant bank on the forged endorsement of a check. The forgery is admitted, and the defense is based upon the alleged negligence of the drawer in entrusting the check to its agent for delivery, who forged the endorsement and received the payment.
The plaintiff is a fraternal order having subordinate lodges and issuing beneficiary certificates. The defendant bank is its depository. At the time of the' transactions involved in this action M. M. Mishler was financier of Mulford. lodge at Atchison. Charles H. Thompson was, and still is, a member of that lodge, holding a beneficiary certificate. On March 5, 1912, Mishler sent to the grand lodge a notice that Thompson had died on March 2; that Cyrus Thompson was the beneficiary; and that the certificate had been misplaced. The notice was signed by Mishler as financier and purported to be signed by the master workman and recorder of the local lodge whose names were forged. Blanks for proofs of death were sent to Mishler. On March 8 the grand recorder received at his office in Emporia purported proofs of death consisting of forged affidavits, certified to by Mishler as sworn to before him, and reports of death purporting to be signed by the local lodge officers. The papers were in due form, were approved by the medical examiner, and a check for $2000, dated March 12, was drawn upon the grand receiver, payable out of the beneficiary fund at the defendant bank, to the order of Cyrus H. Thompson, describing him as the brother of Charles H. Thompson, deceased. The check and a blank form of affidavit of loss of the certificate and blank receipt were mailed by the grand recorder, with instructions, to Mishler as financier of Mulford lodge. On March 15 Mishler presented the check at the First National Bank of Atchison, bearing the purported endorsement of Cyrus Thompson, and also his own endorsement, and received payment. The check was forwarded through other banks in the usual course of business and was paid by the defendant bank through the clearing house at Winfield where it is located. The check was returned as a voucher to the grand lodge in a statement made by the defendant March 25, 1912. The signature of Cyrus Thompson was forged upon the endorsement, and to the affidavit of loss of the certificate, and to the receipt. The forged affidavit and receipt were returned to the grand lodge by Mishler who committed all these forgeries. On June 28 the grand lodge found that Charles H. Thompson was living, its officers accused Mishler of the forgeries, and he then killed himself. It was soon discovered that by means of like forgeries Mishler had received and appropriated the amounts of four other certificates of living members between February 10, 1910, and the date of the Thompson check. Collections were made twice on one of these certificates, the vouchers designating the holder in one set of vouchers .by the initials of his Christian name and in the other by the name in full. In the same manner Mishler received the amount of the certificate of another living member after the Thompson transaction. After receiving payment on these forged vouchers, Mishler, as financier of Mulford lodge, regularly entered the payment of the dues and assessments of the members so reported dead upon the ledger, a record of Mulford lodge, kept pursuant to a rule of the grand lodge. He did not, however, report or pay over such dues and assessments to the receiver of Mulford lodge although a by-law required him to do so at each meeting. A by-law also provided for an examination and audit of the books of the financier, recorder, and receiver of the local lodge in June and December of each year, by the auditing committee, and a written report thereof at the next stated meeting. These reports were regularly made, but the committee did not examine the financier’s books, accepting instead a statement submitted by Mishler which did not show the payments entered upon his books after the reported deaths of members. As these amounts so entered were not paid over to the receiver, the reports of that officer did not show them. The bylaws also required reports from the local lodge to the grand lodge in January and July of each year showing, among other things, the dates of the death of members since the last report, the number of beneficiary certificates held by each, and the receipts and disbursements of beneficiary fund and general fund.
The following provisions are in the by-laws of the grand lodge:
“Upon the death of any member in good standing, it shall be the duty of the subordinate lodge of which he was a member to prepare and forward immediately to the. Grand Recorder proofs of such death, which shall be attested by the seal of the subordinate lodge and signed by the Master Workman, Financier and Recorder of said lodge. . . .
“The Grand Recorder shall furnish to the Recorder of any subordinate lodge, free of charge, blank death proofs, on receipt by him of notice from said Recorder of the death of a member of that lodge. . . .
“In transmitting orders on the beneficiary fund the Grand Recorder shall send the same to the Recorder of the • subordinate lodge to which the deceased member belonged, with full instructions as to the disposition thereof.
“The Recorder of said lodge shall see that the warrants so transmitted are at once placed in the hands of those entitled to receive the same, and that the beneficiary certificate held by the deceased member is properly receipted and attested by two witnesses who shall give their postoffice address, and shall then take up said certificate and immediately forward it to the Grand Recorder.”
The contract with the depository contained the following :
“No moneys placed to the credit of the Grand Lodge of Kansas with such depository will be withdrawn except in payment of orders issued on the Grand Receiver in accordance with the rules of the order, which orders will be payable at such depository, and will be charged to the account of the Grand Receiver; provided that on the joint order of the Grand Master Workman, Grand Recorder and Grand Receiver the entire .amount in hands of such depository may be withdrawn at any time, when they deem it necessary for the best interest of the order.”
The contract provided for the payment of interest to the grand lodge on daily balances, and for monthly statements by the bank.
Among the instructions sent by the grand recorder to Mishler with the check were the following:
“You will please’ deliver the same [check for $2000] to Cyrús Thompson on payment of the assessment for the month of March if not paid, and on receipt of original beneficiary certificate of Brother Charles H. Thompson duly receipted on the back by Cyrus Thompson in the presence of two witnesses, who will subscribe their names thereto as such and give their place of residence. . . .
“In addition to the usual letter of advice accompanying this letter we wish to state that if the beneficiary certificate of Brother Thompson has not been found, I enclose you an affidavit which have filled up, signed and sworn to by Cyrus Thompson, the beneficiary named in the certificate issued to our late brother, Charles H. Thompson.
“I enclose you receipt for him to sign also properly witnessed. On receipt of the affidavit and the receipt properly signed, you are authorized to deliver to him the order issued in payment of the death loss.” '
Mishler was the most active member of Mulford lodge, and assumed to take charge of its interests and welfare more than any other person. He attended to most of the correspondence of the lodge. He was well known in Atchison and by the officers of the First National Bank, where he had good credit. The bank knew that he was financier of Mulford lodge, and knew his signature. At different times he had a personal account with the bank, and until June, 1912, had an account as lodge treasurer. He took two drafts payable to his own order and credit for $100 on his account as treasurer, in payment of the check.
The grand recorder testified that in the majority of cases the local recorder sends in notice of death, and that blank proofs are sent to him, but when the notifica-* tion comes from some other member the blank proofs are sent to that other member; that there was no absolute rule in such cases, and that when sufficient proof is received the draft is generally sent to the person in the local lodge who conducts the correspondence.
The grand lodge keeps a list of members, and when a member is reported dead the fact is recorded in its books.
The Atchison bank did not know Cyrus Thompson or his signature, and when it advanced payment upon the check it made no inquiry as to the genuineness of the endorsement of the payee, but recognized the signature of Mishler below it. The defendant bank paid the check on the guarantee of the previous endorsements.
There is no dispute about the facts. The plaintiff contends that it was the duty of the defendant bank to pay only on the endorsement of the payee, who was a real person. (Kohn v. Watkins, 26 Kan. 691.) It was held in the case cited:
“Where a draft or bill of exchange is made payable to a real person, known at the time to exist, and present to the mind of the drawer when he makes it, as the party to whose order it is to be paid, such draft or bill must bear the genuine indorsement of such payee in order that a dona fide holder may recover thereon, although the bill is drawn without the knowledge or consent of the payee through the false representations of a party obtaining it from the drawer by fraud.” (Syl. ¶ 1.)
Commenting on that decision afterwards, it was said in National Bank v. Shotwell, 35 Kan. 360, 11 Pac. 141:
“There, the draft was sent by Watkins to his correspondent, McLain, to be delivered to the payee thereof, Michael A. Becker. McLain forged the name of Becker upon the draft, then indorsed his own name thereon and negotiated the same. The draft Was never delivered as Watkins had given instructions. He never intended it to be paid to McLain, to whom it was sent. McLain, the correspondent, was solely responsible for the fictitious application and the forgery.” (p. 374.)
The general rule, that in order to charge the account of the depositor a bank must pay only to the payee named in the check, or to his order when so drawn, is conceded (2 Morse on Banks and Banking, 3d ed., § 432), but the defendant contends that it should have credit for the payment in this instance under an exception to that rule recognized in the common law and expressed in section 30 of the negotiable-instruments law (Gen. Stat. 1909, § 5276). It is declared, in sub stance, in that section that no right of discharge can be acquired by payment of a forged instrument unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority. The rule appears to be that payments upon forged endorsements are at the peril of the bank making them unless it can claim protection upon some principle of estoppel or negligence chargeable to the depositor. (Shipman et al. v. Bank S. N. Y., 126 N. Y. 318, 327, 27 N. E. 371.) The negligence relied upon here is the conduct of the grand lodge in sending the check to Mishler for delivery to the payee instead of the recorder as the by-laws provided. This charge is predicated on the previous forgeries of Mishler, from which it is akgued that a like criminal course with respect to this check should have been anticipated and guarded against. The application of the principle contended for must depend upon knowledge of the grand lodge or notice of the previous forgeries. It is undisputed that no officer or agent of the grand lodge had any actual knowledge of any of these forgeries until some time after the payment of this check, when it came to them as a great surprise. The knowledge of Mishler himself of his own criminal acts is not binding upon the grand lodge. (Shipman et al. v. Bank S. N. Y., supra, pp. 329, 330.) Such acts being in fraud of the principal and not within the scope of his agency, are not notice to it. (United States v. National Bank of Commerce, 205 Fed. 433.) Knowledge of an agent of his owfa wrong is not the knowledge of his principal. (2 Morse on Banks and Banking, 3d ed., § 472.) It is argued that the entries in the ledger of Mulford lodge of payments by men reported dead were notice to the grand lodge that the men were still living, and notice of Mishler’s previous forgeries. It may be conceded that the entries of such payments would be notice to the grand lodge as between the order and the member, and possibly in' other cases (Pyramids v. Drake, 66 Kan. 538, 72 Pac. 239), but can the rule be stretched to the extent necessary to protect the bank from liability for the unauthorized payment in this case? It was formerly held that a depositor owed a bank no duty to examine his pass book and vouchers to detect forgeries although the means of detection were thus afforded (Weisser v. Denison, 10 N. Y. 68), but recent decisions hold otherwise (Morgan v. U. S. Mortgage & Trust Co., 208 N. Y. 218, 101 N. E. 371; Note, 7. L. R. A., n s., 744). The modern rule is stated by Judge Harlan, in Leather Manufacturers’ Bank v. Morgan, 117 U. S. 96:
“The sending of his pass-book to be written up and returned with the vouchers, is, therefore, in effect, a demand to know' what the bank claims to be the state of his account. And the return of the book, with the vouchers, is the answer to that demand, and, in effect, imports a request by the bank that the depositor will, in proper time, examine the account so rendered, and either sanction or repudiate it.” (p. 106.)
The object of requiring such an examination is to afford seasonable notice to the bank of any unauthorized payment in order that it may have an opportunity to retrieve against losses. This principle has been extended to the payment of checks entrusted to an agent, after his misconduct had been revealed by a return of vouchers and statement of the account. No state•ments or reports showing the prior forgeries were received by the grand lodge. The reports regularly sent in by Mulford lodge contained no clues to the forgeries. As between the grand lodge and its depository we know of no rule of diligence requiring an examination of the ledger of a subordinate lodge in order to ascertain whether some officer of the latter is transacting his business honestly, in the absence of any notice or suggestion of dishonesty. Negligence can not be imputed for failure to discover fraud which an examination might have disclosed, unless as between the parties affected ordinary diligence required such an examination. While it is true that prior payments made upon endorsements were shown by the monthly statements of the bank, and checks returned to the grand lodge, still' there is no proof or presumption that it knew the signatures of the payees, and in the absence of any information to the contrary, it could rely upon the genuineness of the endorsements. It was said in Leather Manufacturers’ Bank v. Morgan, 117 U. S. 96:
“As the depositor was not presumed to know, and as it did not appear that he in fact knew, the signature of the payee, it could not be said that he was guilty of negligence in not discovering, upon receiving his passbook, the fact that his clerk, or some one else, had forged the payee’s name in the endorsement.” (p. 117.)
Although the defendant paid the check on the faith of prior endorsements, it may without resorting to the liability of such endorsers have the protection of any defense the Atchison bank might have made, and is subject to the same responsibility. (Harmon v. Old Detroit Nat. Bank, 153 Mich. 73, 116 N. W. 617, 17 L. R. A., n. s., 514.) Circuity of action is thus avoided.
The Atchison bank took the check without inquiry ah to the endorsement of the payee; having faith in Mishler it accepted his endorsement as a sufficient guaranty that the endorsement of the payee was genuine. This presents the crucial question, whether the direction to Mishier to deliver the instrument to Cyrus Thompson gave him authorityAo identify Thompson’s signature at the bank. So far as the agent acted within the directions, that is, within the scope of his agency, the lodge is bound, although he acted fraudulently. (Story on Agency, 9th ed., § 452; Mechem on Agency, §740; 31 Cyc. 1582.) But if beyond that authority he acted fraudulently or committed a crime the grand lodge is not bound, nor is notice of such frauds imputed to it. (Shipman et al. v. Bank S. N. Y., 126 N. Y. 318, 331, 27 N. E. 371; United States v. National Bank of Commerce, 205 Fed. 433, 438.) The views of this court upon the general subject, of the .crimes or torts of an agent are stated in Sachrowitz v. A. T. & S. F. Rld. Co., 37 Kan. 212, 15 Pac. 242; Laird v. Farwell, 60 Kan. 512, 57 Pac. 98; Clark v. Folscroft, 67 Kan. 446, 73 Pac. 86, and Crelly v. Telephone Co., 84 Kan. 19, 24, 113 Pac. 386.
It was said in Crawford v. West Side Bank, 100 N. Y. 50, 2 N. E. 881:
“The theory that a party who makes and issues commercial paper, properly and carefully drawn, to express the liability which he intends to assume, is chargeable with negligence on account of the criminal act of another in altering it after its issue, would render him a warrantor against such acts and is repugnant to j ustice and reason.” (p. 55.)
It is argued that because the contract provided that money should be withdrawn only on orders issued in accordance with the rules, and that a rule required that orders on the beneficiary fund should be sent to the recorder of the local lodge, the bank should be acquitted of this charge, the order in this instance having been sent to the financier instead of the recorder. The bank had an interest in holding possession of the beneficiary fund, and stipulated that it could only be withdrawn as provided by the rules by which it was set apart for death losses. The contract guarded against withdrawal otherwise. It would be a strained construction of the contract to hold that the bank could refuse payment of an order on that fund merely because it was mailed to a different person than the one named in the rule. The rule in this respect could be modified without affecting the legal rights of the depository.
The endorsement was not within the scope of Mishler’s duty. It was made afterward and was an independent act. The defendant’s argument upon this branch of the case is that having been directed to deliver the check to Thompson, the payee, it became Mishler’s duty to identify him. True, there must be identification in order to make the delivery, but the duty ended there. Had the delivery been made, the service required would have been completely performed. No further duty was suggested by the instructions or necessary for the payment of the claim undertaken by the grand lodge except to procure the affidavit and receipt. Had the check been delivered to Thompson — who, it must be remembered, was an actual and not a fictitious payee — and by some mischance it had come again into the hands of Mishler and he had then forged the endorsement it would not be contended that the grand lodge would be bound. It is not perceived how. his failure to deliver the check changes the legal effect of the agent’s misconduct. In either case the forgery was beyond the scope of his employment.
A situation similar to the facts of this case appeared in Second Nat. Bk., Appellant, v. Trust & S. D. Co., 206 Pa. St. 616, 56 Atl. 72. A bank paid a check to one who presented it under a forged endorsement. It had been drawn by a beneficiary association payable to the order of the brother of a member supposed to be dead. The endorsement was forged.- The bank paying the check was the depository of the order. In a suit by the association to recover the amount charged against its account, an affidavit of defense alleging that the check had been drawn without due precaution, inasmuch as the beneficiary was living, was held insufficient. The court said:
“We fail to see any relevancy whatever in the suggestion that the beneficial order was negligent in issuing a draft to pay a death benefit for a member who was yet alive. That is not the point in this case. Whether or not it failed to make due inquiry matters not in this proceeding. That would go only to the question of consideration as between the order and the beneficiary. Upon what it considered satisfactory proof, the order drew its draft upon the bank for a sum of money, payable to the order of John Davis. It had a right to require that its direction in this respect should be carried out. The draft was payable only upon the order of John Davis. And until John Davis did actually order or direct the payment of a draft to some one else, the title to the instrument remained in him, and never properly passed from him. When the defendant therefore took the draft without knowing whether or not the signature of John Davis, which appeared upon the back of the draft, was genuine, it took the instrument at its own peril.” (p. 620.)
The defendant distinguishes that case by the fact that there was no evidence that the association had been negligent, because the agent to whom the check had been entrusted for delivery was the proper person, and there was no evidence that he had ever before been guilty of any wrongdoing. The grand lodge, as already stated, could modify its rule requiring checks to be delivered by the recorder of the local lodge, as it had often done. The duty of the depository was to pay only upon the order of the payee, unless it can invoke the protection of estoppel or such negligence of the depositor as will be a sufficient defense. This negligence must relate to some duty which the grand lodge owed to the bank. As already stated, it was not required, in the absence of any notice or information, to explore the books of Mulford lodge which furnished the clue to Mishler’s previous guilt, but might rely upon the presumption of his honesty. In the absence of notice or knowledge either to the grand lodge or the bank, the former forgeries were wholly unrelated to this transaction. (Dodge v. The National Exchange Bank, 20 Ohio St. 234.)
In Hardy & Bros. v. Chesapeake Bank, 51 Md. 562, 34 Am. Rep. 325, the questions of negligence and estoppel in relation to the payment of forged checks was elaborately considered. A confidential clerk had forged a series of checks. After discovery of the fraud a suit was brought by the depositor against the bank to recover the amount. The return of the pass-book and forged checks was referred to and the duty of the depositor to make the usual examination was stated. The court said that it was a question of fact whether the depositor had knowledge of the forgeries, or failed to obtain information from sources of information readily accessible, which by the exercise of reasonable diligence might have been obtained, and added:
“If such facts be found to exist, then it must be also found, in order to work an estoppel, that the appellee acted, in honoring and paying the nine checks in question, in reference to the conduct of the appellants in failing to make known an objection to the account as stated . . . and that such omission and neglect of the appellants did in fact mislead the appellee into the error of paying the nine forged checks now in dispute.
“This doctrine of estoppel in pais is applied in a great variety of circumstances, but its great object is to prevent injustice being done, where one party has been led into error by the fault or fraud of the other. It is a most valuable doctrine for the promotion of justice; but it can have no application except where the party invoking it can show that he has been induced to act or refrain from acting) by the acts or conduct of the adverse party, under circumstances that would naturally and rationally influence ordinary men. . . . And in the recent case of Arnold v. The Banks, L. Rep., 1 C. P. Div., 578, where the principle was extensively discussed as to its application to the negligent conduct of the party suing, it was held, following the previous cases, that negligence, to create an estoppel, must be in the transaction itself, and be the proximate cause of leading the third party into mistake, and also must be the neglect of some duty which is owing to such third party, or to the general public.” (Hardy & Bros. v. Chesapeake Bank, 51 Md. 562, 589, 591.)
The material transaction of the depositor in this case consisted in intrusting the check to Mishler for delivery. That of itself could not mislead the bank into a mistake. The mistake was caused by reliance upon Mishler’s indorsement as a guaranty of the genuineness of the payee’s indorsement, a matter not within Mishler’s employment or duty, but apart therefrom.
It is suggested that the alleged negligence of the grand lodge was a question of fact concluded by the finding of the jury. That would be true if the facts were disputed or there was room fon different inferences — a situation not presented here. Payment having been made upon a forged indorsement, the burden was upon the defendant to prove facts sufficient to avoid liability to the depositor. The facts proven are insufficient.
Among the cases cited in support of the defense is McHenry v. National Bank, 85 Ohio St. 203, 97 N. E. 395. A stranger was introduced to a money lender as George Thresh, who asked for a loan on a farm. On examination of the record the title to the farm was found to be in George Thresh. Later the loan was agreed upon, a mortgage was made, and a check was delivered to Thresh, payable to his order, and upon his indorsement was paid by the bank. It was afterwards discovered that the farm belonged to another George Thresh, who knew nothing of the transaction. The suit was by the drawer of the check against the bank to recover the money, on the theory that it had been paid on a forged indorsement, but the action failed because the money was paid to the very person to whom the check had been delivered as payee by the drawer. The same result was reached in Land Title & Trust Co. v. Bank, 196 Pa. St. 230, 46 Atl. 420, 50 L. R. A. 75; Russell v. First Nat. Bank of Hartselle, 2 Ala. App. 342, 66 South. 868; Weisberger Co. v. Savings Bank, 84 Ohio St. 21, 95 N. E. 379; James Maloney v. Clark & Co., 6 Kan. 82; National Bank v. Shotwell, 35 Kan. 360, 11 Pac. 141. In each of these cases the drawer of a check was misled as to the identity of the payee, but the indorsement was made by, and the money paid to, the very person to whom the check had been drawn and delivered by the drawer. In this case no such delivery had been made, and the payee was not an impostor and his identity is not questioned. In the cases referred to the drawer made the first mistake, from which the loss resulted. Here no mistake was made; the check was intended for Cyrus Thompson. The fact that the grand lodge had been fraudulently induced to write it does not affect the legal rights of the bank. (Second Nat. Bk., Appellant, v. Trust & S. D. Co., 206 Pa. St. 616, 56 Atl. 72.) The case of London Life Ins. Co. v. Molson’s Bank, 5 Ont. L. Rep. 407, is quite similar in many of its facts to this, but differs in at least one important respect. The insurance company had notice of former extensive forgeries of the same nature by its agent when it sent to him the checks in question. Here, as we have seen, notice of the former forgeries is lacking.
Valuable notes relating to various phases of the general subject discussed in this opinion are contained in 7 L. R. A., n. s., 744,17 L. R. A., n. s., 514, and 41 L. R. A., n. s., 529.
The instrument upon which the endorsement was forged has been referred to as a check. The defendant calls attention to the fact that its language differs from that of an ordinary check by a designation added to the name of the payee. The order is to “pay to the order of Cyrus Thompson (brother) of Brother Charles H. Thompson deceased, late member of Mulford Lodge, No. 137, located at Atchison, Kansas.” It is also made payable out of the beneficiary fund. The language quoted is referred to as evidence of a special arrangement showing a relation with the bank different from that of debtor and creditor ordinarily existing between banker and depositor. We conclude, however, that the instrument has the legal effect of an ordinary bank check. The descriptive words suggested means of identification of the payee. For that purpose they were beneficial to the bank. (See, also, Bank v. Lightner, 74 Kan. 736, 88 Pac. 59.)
With great industry and ability counsel for both parties have presented arguments and quoted extensively from the decisions of many courts pertinent to this controversy, but enough citations have already been made in this opinion to illustrate, and as we believe to support, the views expressed.
The judgment will be reversed, with directions to render judgment for the plaintiff for the amount of the check with interest from the date of the demand for payment.
|
[
-16,
-24,
-87,
-116,
10,
96,
42,
-70,
80,
-95,
-95,
123,
-23,
-102,
5,
107,
-16,
61,
80,
104,
-10,
-77,
55,
-117,
-46,
-13,
-23,
-43,
-80,
92,
-74,
-41,
72,
48,
66,
-99,
-26,
-118,
-57,
-44,
-114,
4,
40,
-61,
-7,
24,
48,
119,
4,
75,
113,
30,
-13,
35,
30,
71,
105,
44,
-21,
45,
-16,
-79,
-81,
-123,
-1,
22,
2,
3,
-100,
7,
-40,
46,
-104,
117,
67,
-23,
114,
-74,
22,
116,
99,
41,
12,
-30,
102,
49,
-11,
-19,
-116,
-104,
47,
-9,
-99,
-89,
-46,
104,
-95,
-82,
-98,
-99,
119,
18,
6,
92,
-2,
21,
25,
44,
3,
-49,
-26,
-109,
-97,
126,
-100,
-117,
-1,
-87,
34,
112,
-52,
112,
93,
103,
58,
-103,
-113,
-80
] |
The opinion of the court was delivered by
Burch, J.:
The action in its present form is one to foreclose a mortgage of a tract of land which at one time constituted Prospect Park in the city of Hutchinson. The holder of the mortgage was defeated and appeals.
The land was formerly owned by C. C. Hutchinson. He dedicated it to public use for a park by a plat of the city of Hutchinson filed March 15, 1872. In the year 1888 he procured an order from the board of county commissioners purporting to vacate the park, and on August 1, .1888 executed the mortgage in suit, which was in form a trust deed to the Kansas Loan & Trust Company to secure a note payable to the order of E. M. Sheldon. In April, 1891, the city of Hutchinson commenced an action to annul the vacation of the park, to cancel the mortgage, and to quiet the city’s title to the land. Hutchinson, Sheldon, and the Kansas Loan & Trust Company were made parties defendant. Sheldon disclaimed, having disposed of the note to another. The Kansas Loan & Trust Company disclaimed for itself, but answered that it had an interest in the premises as trustee under the trust deed, for the holder of the note, and denied generally the allegations of the petition. In July, 1891, Hutchinson procured an order removing the cause to the circuit court of the United States. After consideration of the removal by the circuit court and by the circuit court of appeals the cause was remanded to the district court of Reno county. This was probably in 1897. Eor the succeeding ten years the action slumbered. In April, 1907, Hutchinson took steps to supply the missing files and procured an order that the transcript prepared for use in the United States court might stand in place of the original papers. In the meantime Hutchinson had conveyed the land to J. G. Wilson, who had sold a one-half interest to E. M. Traylor. On June 17, 1908, Wilson and Traylor were substituted for Hutchinson as parties to the suit and a judgment was rendered in their favor quieting their title against the plaintiff, the city of Hutchinson. No judgment was taken against Sheldon or the Kansas Loan & Trust Company as trustee. In April, 1910, W. B. Lowrance, who had purchased the note and had secured possession of the trust deed, was substituted for Sheldon and the Kansas Loan & Trust Company. In September, 1910, he filed an answer and a cross-petition in which he asked for a foreclosure of the trust deed. By this time Traylor had purchased Wilson’s interest in the land. Traylor filed a plea to the jurisdiction, asserting that Sheldon and the Kanas Loan & Trust Company had abandoned the litigation, that the judgment of June, 1908, was a final disposition of the case which excused, discharged and concluded all parties to the suit, that afterwards no action was pending, and that the orders permitting Lowrance to come into the case and to file his cross-petition in foreclosure were unauthorized and void. This plea was overruled, and a demurrer to the cross-petition was also overruled. Traylor then filed an answer which reasserted the facts embraced in the plea to the jurisdiction, and then pleaded laches and the statute of limitations in bar of Lowranoe’s right to relief. A trial was had, at the conclusion of which the court made findings of the essential facts substantially according to the foregoing statement, and deduced the following conclusion of law:
“I conclude as a matter of law, from the foregoing facts, that the note and mortgage described in finding No. 5 are barred by the Statute of Limitations and by the laches of the holders thereof and that the pendency of this present action has not tolled the run of the Statute of Limitations and that the defendant Lowrance is not entitled to recovery upon his said cause of action or to have the said mortgage foreclosed.”
Traylor presents no assignments of error concerning-the several matters adjudicated against him, and consequently the two subjects embraced in the trial court’s, conclusion of law are all that are open to consideration. That of laches is easily disposed of.
• The doctrine of laches is equitable in character, and the findings of fact present no subject of equitable; consideration in Traylor’s favor except lapse of time.. Wilson and Traylor purchased with full knowledge of the existence of the mortgage and subject to it. The-' evidence shows that Wilson paid Hutchinson $100 for a quitclaim deed of the park, and that Traylor paid. Wilson $100 for a quitclaim deed of a one-half interest in it. At that time the city’s suit was pending. Conceding that this suit was neglected and dormant,, it was sufficiently alive in 1908 for Wilson and Traylor to take judgment in it establishing their title against, the city. When this judgment was taken an answer was on file by the Kansas Loan & Trust Company as trustee, asserting an interest in the premises for the-protection of the holder of the note secured by the-trust deed. Instead of undertaking to secure a final, disposition of the case, Wilson and Traylor took judgment against the.city alone, and as the court ruled, the case was left open to the substitution of Lowrance in place of the original holders of the paper and proceedings on his part to enforce his lien. The result is that Traylor is in no position to complain of slackness in the conduct of the litigation.
There has been no fraud on the part of any one. There has been no intervention of the rights of innocent third persons, no death or disability of party, no loss of testimony or increased difficulty of defense, no ignorance of facts or rights, no change of conditions or relations upon which to found an estoppel against Uowrance or to build up an equity in favor of Traylor. Lapse of time has had no prejudicial effect upon the rights of the parties, and each one occupies the precise situation and enjoys all the privileges and advantages of his predecessors in interest. Laches, therefore, does not bar foreclosure of the mortgage. (Harris v. Defenbaugh, 82 Kan. 765, 109 Pac. 681; Dusenbery v. Bidwell, 86 Kan. 666, 121 Pac. 1098.)
The question whether or not the statute of limitations is a bar to the foreclosure is more difficult of solution.
In April, 1891, the city of Hutchinson commenced its action against the mortgagor and the mortgagee to cancel the mortgage and to quiet the city’s title to the mortgaged premises. The mortgagee answered with a general denial of the city’s claim and an assertion that the mortgage created an interest in the land. At that time the note secured by the mortgage was not due, and no occasion existed to ask for a foreclosure. True, a coupon was two months overdue, and the holder of the mortgage had an option to declare the whole sum secured by the mortgage to be due. He was not obliged to exercise his option so soon, however, and so far as the record shows the debt did not mature and the statute of limitations could not commence to run for considerably more than two years after the existence and validity of the mortgage as a lien were assailed. The mortgagor did not contest the answer of the .mortgagee, and the action in which the answer was filed was still pending when Lowrance, in legal effect, expanded the pleading so that it became a cross-petition in foreclosure. After the city commenced its suit it would have been a necessary party, as a claimant of full title, to any independent action brought to foreclose the mortgage, and the policy of the law would have demanded that the proceedings in any such action should be arrested to await the determination of the prior suit to quiet the city’s title. The same would have been true if a cross-petition to foreclose had been filed in the city’s suit, and the mortgagee was not obliged, as a matter of ceremony, to institute a proceeding which could not properly be prosecuted with effect. It is true that the mortgagee might have reduced the note to judgment in an action against Hutchinson alone, but no rule of law or consideration of justice required the mortgagee to abandon his security, and he was virtually restrained from enforcing it so long as the city’s suit was undetermined.
That the running of the statute of limitations may be postponed, or may be suspended after it has commenced to run, for causes not specified in the statute, is well established. The basis of such exceptions was well stated by Mr. Justice Strong in the case of United States v. Wiley, 78 U. S. (11 Wall.) 508:
“In Hanger v. Abbott it was decided that the effect of the war was to suspend the running of statutes of limitation during its continuance, in suits between the inhabitants of the loyal States and the inhabitants of those in rebellion. The same doctrine was repeated in .substance in The Protector. It would answer no good purpose to go behind the decisions and review the reasons upon which they are founded. We are still of opinion that they rest upon sound principle. But it is said those decisions only rule that the war suspended the-statutes’ running against claims by one citizen upon another, and that they do not relate to claims of the government against its own citizens resident in rebellious States. This may be conceded, but the same reasons which justify the application of the rule to one class of cases require its application to the other. 'True, the right of a citizen to sue during the continuance of the war was suspended, while the right of the government remained unimpaired. But it is the loss of the ability to sue rather than the loss of the right that stops the running of the statute. The inability may arise from a suspension of right, or from the closing of the courts, but whatever the original cause, the proximate and operative reason is that the claimant is deprived of the power to institute his suit. Statutes of limitations are indeed statutes of repose. They are enacted upon the presumption that one having a well-founded claim, will not delay enforcing it beyond a reasonable time, if he has the power to sue. Such reasonable time is therefore defined and allowed. But the basis of the presumption is gone whenever the ability to resort to the courts has been taken away. In such a case the creditor has not the time within which to bring his suit that the statute contemplated he should have.” (p. 513.)
This court has been reluctant to acknowledge exceptions additional to those contained in the statute itself. Its general policy is illustrated by the decision in the case of Railway Co. v. Grain Co., 68 Kan. 585, 75 Pac.. 1051, where it was held that fraudulent concealment of' the fact that a right of action existed did not create an. implied exception to the statute. On the other hand, in the case of Duvall v. Simpson, 53 Kan. 291, 36 Pac. 330,. which was instituted originally to correct a mistake made in describing the land intended to be conveyed by a deed, the word “mistake” was practically read into-the statute providing that the period of limitation for relief on the ground of fraud does not commence to.run. until discovery of the fraud. This decision was followed in the case of Coal Co. v. Miller, 88 Kan. 763, 129 Pac. 1170, decided in February, 1913. In the case of' The State v. Bank, 84 Kan. 366, 114 Pac. 381, it was said:
“When the court assumed full charge of all the affairs of the Circleville bank and undertook to wind them up for the benefit of creditors, stockholders and' all others concerned, the right to secure the payment of" claims by the usual processes of the law was suspended. The receivership suit itself was one pending for the benefit of everybody interested. The statute of limitations against ordinary actions has no application, and lapse of time before proceeding against funds in the receiver’s hands is important only as it tends to showlaches or unreasonable delay.” (p. 370.)
In the case of Hawkins v. Brown, 78 Kan. 284, 97 Pac. 479, Hawkins pleaded the statute of limitations in-an action to recover on a promissory note which he- had executed. The plaintiff showed that the note had been in custodia legis for a time sufficient to remove the bar of the statute, in a controversy to which Hawkins was not a party. The court said:
“The proceedings in the district court of Haskell county did not affect the rights of defendant Hawkins, for he was a stranger thereto. It can not be that the inconvenience or the practical difficulty of bringing an action upon a promissory note, because it is involved for the time in litigation in an action between other parties, can suspend the operation of the statute of limitations on such instrument against a person who is in no way responsible for, involved in, or connected with, the litigation. So to hold would be to read into the statute a proviso or condition not placed there by the lawmakers.” (p. 288.)
However, in the case of Harrison v. Scott, 77 Kan. 637, 95 Pac. 1045, the court recognized the rule that the pendency of legal proceedings may affect the running of the statute, and quoted the statement of the rule found in 25 Cyc. 1278, as follows:
“ ‘Where a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.’ ” (p. 641.)
In the case of Dendy v. Russell, 84 Kan. 377, 114 Pac. 239, the syllabus reads as follows:
“The appellants sued on the covenants of warranty of title in a bill of sale. In a former suit on the same cause of action- it was adjudged that they could not maintain an action at that time because of an oral agreement not to sue until other litigation terminated. Held: (1) That while they were prevented from maintaining the action the statute of limitations was tolled.”
Sometimes it is said that the rule excluding from computation the time during which a creditor is prevented by paramount authority from exercising his remedy applies only when the paramount authority was invoked and the restraint was induced by the debtor. This statement of -the rule (Lagerman v. Caserly, 107 Minn. 491, 120 N. W. 1086, 23 L. R. A., n. s., 673), is too broad since the paramount authority might, under some circumstances, be the state itself acting in its sovereign capacity.
In the present instance the suit was brought by a third party, who attacked the title of the mortgagor and the legal existence of the mortgage before a right of action accrued to the mortgagee. Both the mortgagor and the mortgagee were made parties to the suit and upon the situation thus created the law itself, out of considerations of justice, orderly procedure, and finality of results, interfered and precluded the mortgagee from pursuing his remedy against the mortgagor. It would seem that the law ought not to say to the mortgagee that he must proceed -or lose his remedy while at the same time forbidding him to proceed.
Under the circumstances it is held that the operation of the statute of limitations was postponed until after the claims of the city of Hutchinson were disposed of. Foreclosure having been asked in due time thereafter, the remedy was not barred.
The judgment of the district court is reversed and the cause is remanded with direction to foreclose the mortgage.
|
[
-12,
110,
-112,
46,
74,
-32,
24,
-101,
107,
-85,
-92,
91,
45,
-64,
21,
109,
86,
13,
-44,
121,
-57,
-77,
7,
-124,
-46,
-13,
89,
-35,
-5,
93,
-10,
-57,
74,
112,
-54,
-75,
-122,
-62,
67,
28,
-114,
-121,
8,
84,
-39,
72,
52,
107,
118,
9,
81,
63,
-13,
43,
28,
-29,
108,
44,
-53,
61,
49,
-15,
-85,
-123,
127,
19,
1,
97,
-104,
-121,
-64,
42,
-112,
113,
8,
-8,
87,
-74,
-122,
116,
79,
27,
108,
34,
103,
3,
100,
-21,
-8,
-104,
14,
-47,
-115,
-90,
-76,
24,
74,
32,
-106,
-103,
85,
18,
67,
-2,
-17,
-123,
29,
-20,
5,
-117,
-44,
-79,
14,
60,
-112,
11,
-13,
-125,
49,
97,
-113,
-14,
92,
71,
48,
19,
-114,
-8
] |
'The opinion of the court was delivered by
West, J.:
The plaintiffs sued to recover from the defendants, Wilbur & Ross, possession of the first floor of a certain building known as the Doty building, and ■sued the other defendants in another action to quiet title to certain real estate known as the Tabor property. The two cases were consolidated. The pleadings ■of the plaintiffs alleged in substance a long and complicated course of dealing between M. R. Doty and TI. D. Shepard, going back to 1886; an assignment to Shepard for the benefit of creditors, certain property taken by him to be held as security for loans and advancements, an agreement to arbitrate, an arbitration ■of all their matters of difference, an agreement to carry such arbitration into effect, that the report by the arbitrators was grossly wrong and fraudulently and corruptly made; that the agreement to carry it into effect was never carried out; that Shepard retained the real estate, including that involved herein, and continued to collect and retain the rents and profits thereof, which had more than paid the indebtedness of the plaintiffs; that H. D. Shepard’ died in April, 1904; that defendants Nellie P. Shepard and Emma D. Price, his daughters, and D. S. Shepard, his wife, had wrongfully collected the rents and profits for the past three years; that the plaintiffs were in equity the owners and •entitled to immediate possession, and praying for an ¡accounting of the true indebtedness of the plaintiffs to .H, D. and D. S. Shepard and of the rents and profits, that the indebtedness be adjudged fully paid and the possession and title of the plaintiffs be quieted, for judgment for rents and profits, and for general relief. By an amendment to comply with a motion it was alleged that the'action was not based upon the award, but that the same and the agreement to carry it into effect were mere incidental facts. The answer pleaded the two-, five- and fifteen-year statutes of limitations and other matters.
The referee found among other things that at the date of the assignment Doty was the owner of the property involved herein, that the Tabor property was foreclosed upon in 1889, H. D. Shepard being the purchaser and having the same conveyed by sheriff’s deed to L. A. Dutton, who conveyed to Nellie P. Shepard, no consideration having passed from either, all of the money being paid by H. D. Shepard; that the Doty store building was foreclosed upon in 1891, Shepard purchasing at sheriff’s sale, deeding the same to his wife, D. S, Shepard; that about April, 1895, Doty and Shepard entered into an arbitration agreement to determine the differences pertaining to all property affairs in controversy between them of every kind and character; that the award was made and signed and accepted by the parties, and thereafter an agreement in writing was entered into between the Dotys-and Shepard and wife and another to carry out the ward. That all of the instruments provided for in such agreement were executed and delivered to two of the trustees, but after-wards returned because it was said that neither side would carry out its agreement; that during all the years after the purchase of the property involved herein Shepard and his wife remained in possession and collected the rents, except that shortly before the death of H. D. Shepard, in 1904, M. R. Doty took possession of the room on the second floor of the Doty building and afterwards the remaining rooms on that floor without the knowledge or consent of the Shepards, and m 1910 moved into the Tabor property without the knowledge or consent of D. S. Shepard, and has continued to hold possession; that when Shepard purchased the Tabor property and the Doty store building he agreed to reconvey at any time the Dotys should repay the amount advanced, with interest, and demand reconveyance; that up to about March 25, 1907, sufficient rents and profits were collected from these properties, if properly applied, to repay with interest the purchase money advanced by Shepard after deducting for taxes, repairs and insurance; that since that time the rent received by D. S. Shepard from Wilbur & Ross amounts to the net sum of $510.10; that the award.and the contract in pursuance thereof were not carried out or sought to be enforced by either party, except as stated in certain findings; that the assignment proceedings are still pending and have never been closed; that M. R. Doty has had possession of the Tabor property for ten months, worth $310, and that his occupancy of the second floor of the Doty building is worth $480; that both parties are now relying upon the award, and both claim that the same is valid and binding in every respect.
As a conclusion of law the referee found that the arbitration and award merged and extinguished all claims embraced therein, and that the plaintiffs’ only remedy is the enforcement of the latter; that defendant Nellie P. Shepard is entitled to a judgment for $310 for occupancy of the Tabor property, and defendant D. S. Shepard to judgment for $480 for the use of the second story of the Doty building. The plaintiffs moved for leave to amend their petition to conform to the facts proven and make it an action to execute the contract between the plaintiffs and defendants to carry the award into effect, for an accounting and judgment that the same had been fully paid, and that the plaintiffs have their title quieted and for costs and other relief, which motion was denied. The referee delivered an opinion in which he stated that the plaintiffs, having ■ alleged that the case was not based upon the award and not brought for the purpose of enforcing it, were attempting to limit the right of relief to an accounting of the amount due on the purchase price of the real estate involved, and that this exact question was with' others submitted to the arbitrators; that the plaintiffs’ right of action accrued upon the publication of the award and the refusal of Shepard to perform it, and that any suit brought now to enforce it would be barred by the five-years statute of limitations.
We think this construction of the plaintiffs’ pleadings is entirely justified by the language used in their various allegations, but their first complaint now is that they were not permitted to amend to conform to the facts, and in effect to conform to the views of the referee and treat the arbitration as binding. It seems fairly clear that although the award and contract made in pursuance thereof were not carried out, nevertheless the real estate in question was retained by the Shepards as security for the debt owed by the Dotys for money advanced by Shepard. And so long as this situation continued it would seem that under proper pleadings the plaintiffs should be entitled to show that the indebtedness had been extinguished and that they were entitled to a reconveyance of the real estate or to have their title quieted. The fault for not carrying out the arbitration and the agreement appears to be as much on one side as on the other, and while the failure to carry it out does not change the status of the transactions and the obligations fixed thereby, neither should it prohibit either party from showing a subsequent course of dealing and the rights acquired in consequence thereof.
There is nothing in the findings to indicate that Shepard repudiated the trust or did anything to change his status as creditor of the Dotys for the sums advanced when he bought in the properties and placed the title where he did. And while this relation continued the statute of limitations would not begin to run against an action by the debtor to redeem (Hunter v. Coffman, 74 Kan. 308, 310, 86 Pac. 451; Clark v. Shoesmith, 91 Kan. 797, 139 Pac. 426), and it certainly would, not have run against an action to quiet title (Cooper v. Rhea, 82 Kan. 109, 107 Pac. 799; Bank v. Bay, 90 Kan. 506, 135 Pac. 584). Defendants D. S. and Nellie P. Shepard are found to be legal title holders who paid no consideration. Mrs. Shepard signed the agreement to carry out the arbitration and therefore holds subject to whatever rights, if any, of the Dotyssremain in the property. There is no finding as to whether the daughter thus holds or not, or as to her right to avail herself of the fifteen-year statute of limitation pléaded.
When the referee’s report came in and the motion was made for leave to amend to conform to the facts the court had all the parties before it, the action was equitable in its nature, and had the leave, been granted the end of long-protracted litigation might have been reached. But under the settled rule the matter rests in the discretion of the trial court, and its' ruling must be deemed final unless it appears that such discretion was abused, and the circumstances do not justify such holding. However, as the parties had all assumed the attitude, as found by the referee, of treating the arbitration as in all respects valid and binding, notwithstanding the allegation of its invalidity found in the plaintiffs’ petition, we see no reason why the case should not now be treated and regarded accordingly. The award and the subsequent contract make it plain that the rights of the parties thereto were fixed and determined at the time, and starting with such determination as a basis no reason is apparent why the rights subsequently accruing may not be finally adjusted in this action, and this regardless of any, question of amending the petition. The plaintiffs, charging the award to have been fraudulent, nevertheless attempted to treat it as an incident in the dealings between the parties to it, and the proofs showed it to be correct and valid. But regardless of its validity or invalidity, they were seeking to quiet their title to the property in question upon the theory that the indebtedness to secure which it had been taken over by Shepard had been paid. The award, which expressly covered this property, simply fixed the rights of the parties at the time, and while either might have proceeded to enforce its observance by the other, their failure so to do did not destroy its .binding effect. The referee having found that in March, 1907, this debt had been paid as to the properties here involved, the rights of the parties ought to be adjudicated accordingly. We can not agree that the .plaintiffs are barred from the relief sought on account of the five-year statute of limitations, and for that reason the judgment must be reversed. There is no .necessity, however, to retry the entire matter. We find nothing wrong with the referee’s findings of fact, which were approved by the trial court, but it should also be •ascertained and found what the rights of Nellie P. .Shepard-are in the Tabor property. When this is done, and the result added to the findings already made, the rights of the parties can easily be determined.
A parcel of land over which there is no contest was •covered by the judgment which in that respect will be affirmed.
The judgment in other respects is reversed and the cause remanded with directions to determine the rights of defendant Nellie P. Shepard in the property claimed by her, and render such judgment as such determination together with the findings of fact heretofore made .shall warrant.
|
[
-16,
110,
-44,
-66,
74,
96,
42,
-8,
75,
-96,
-73,
95,
-55,
-57,
29,
61,
-26,
121,
-47,
107,
-10,
-77,
2,
-94,
-46,
-13,
-13,
-59,
-79,
-19,
-12,
-42,
76,
33,
-62,
-107,
-26,
96,
-61,
22,
-114,
5,
56,
69,
-3,
64,
52,
59,
54,
79,
17,
-113,
-29,
37,
29,
75,
105,
45,
105,
-71,
84,
-72,
-110,
-123,
79,
3,
17,
119,
-100,
-125,
104,
8,
-112,
53,
1,
-96,
115,
-90,
-122,
116,
105,
-103,
13,
38,
99,
32,
-59,
-17,
-24,
-104,
46,
119,
-115,
-90,
-94,
88,
-118,
8,
-68,
-99,
116,
0,
-125,
118,
-1,
20,
25,
108,
5,
-113,
-106,
-15,
-113,
62,
-106,
-37,
-37,
3,
37,
112,
-49,
34,
93,
70,
127,
59,
15,
-54
] |
The opinion of the court was delivered by
Porter, J.:
This action arose out of a claim filed in the probate court in Kingman county, by the Schump Land Company, a partnership composed of J. F. Schump, Ed Reible and George Renner, against the estate of John Probst, deceased, upon a promissory note for $100, dated Cunningham, Kan., November 1, 1908, payable to the order of the plaintiff, with interest at 6 per cent per annum after maturity until paid, (signed) “John Probst.”
The probate court allowed the claim, and Anna Probst, executrix of the estate, appealed from the order to the district court where she filed a verified answer setting up a number of defenses: first, that the plaintiff is' not the legal owner and holder of the purported note; second, a denial of the execution of the note by John Probst; third, that the note was wholly without consideration, and that John Probst in his lifetime was never indebted in any manner to the plaintiff either on the note or otherwise; fourth, that the note was executed on November 1, which was Sunday, and that on that day John Probst was intoxicated and under the influence of liquor so as to totally incapacitate him from the transaction of any business. The jury returned a verdict for the defendant and the plaintiff appeals.
The cashier of the bank at Cunningham was a witness for plaintiff. He testified that he was well acquainted with the signature of John Probst, and he identified the signature to the note as genuine. He testified too that in the spring of 1910 he had the note for collection and talked with Probst a couple of times with reference to it; that Probst promised him to come in and pay the note and never repudiated it.
At the trial the defendant abandoned all the defenses to the action except the defense that there was no consideration for the note. Inasmuch as the record discloses that she failed to produce any competent evidence in support of this defense, we think it should likewise be abandoned. Assuming that the note might have been given by her husband in his lifetime as a subscription toward the erection of the Catholic church at Cunningham, she did offer proof tending to show that he had paid his subscription of $100. There was no evidence whatever to connect the note with the subscription. Assuming, without any competent evidence to that effect, that the note was given to plaintiff’s real-estate firm for a commission in a certain transaction wherein she and her husband had exchanged Some real estate with another party, she testified that when that trade was made one of plaintiff’s firm said that no commission would be charged. There was no testimony offered by the plaintiff sufficient to justify even a remote inference that the note was not given for a valuable consideration. The instrument imports a consideration, and the burden was on the defendant to prove the contrary. The démurrer to the evidence of the defendant should have been sustained.
Reversed and remanded with directions to render judgment in plaintiff’s favor.
|
[
112,
108,
-76,
-113,
-86,
96,
-86,
-102,
115,
-63,
-76,
115,
-23,
-45,
0,
125,
98,
45,
85,
105,
-9,
-77,
7,
-24,
82,
-13,
-15,
-107,
-79,
73,
-28,
-42,
77,
48,
74,
85,
102,
-30,
-57,
-36,
-114,
4,
9,
-32,
-39,
-56,
48,
107,
20,
75,
113,
-18,
-77,
43,
60,
102,
105,
46,
127,
40,
-64,
-80,
-69,
-123,
109,
6,
16,
97,
-48,
-63,
72,
10,
-112,
49,
0,
-24,
49,
-90,
6,
-12,
43,
-71,
13,
102,
98,
48,
-75,
-17,
-88,
-104,
7,
54,
29,
-89,
-14,
88,
43,
37,
-76,
-99,
49,
81,
-121,
-4,
-4,
29,
20,
104,
1,
-118,
-42,
-79,
51,
60,
20,
11,
-1,
-121,
32,
113,
-51,
96,
92,
119,
49,
-101,
-114,
-112
] |
The opinion of the court was delivered by
Mason, J.:
On March 18, 1909, James Weatherby executed a writing in these words, the real estate referred to being that occupied by himself and family :as a homestead:
“To whom it may concern:—
“This is to certify that I have this day granted to J. B. Fleming of Hamilton, Kansas, an option upon my farm, to buy or sell the same, for the consideration of $4900.00. This option is granted for the term of to April 1st, 1909, and is the exclusive option to buy or sell the following described real estate [describing it]. I hereby grant the above exclusive option on the above described tract of land, for the consideration of $1.00, the receipt of which is hereby acknowledged, and I hereby further agree to furnish a warranty deed and abstract, showing a good title to said land, said abstract and deed to be delivered in the Hamilton, Kansas, within five days after receiving notice, from the said J. B. Fleming that he has sold or will buy my tract of land at the above figures, and I further agree to make the deed to any one designated by the said J. B. Fleming, and -will make the consideration in the deed the amount that the said J. B. Fleming may desire and the consideration which I am to receive as mentioned above is to be full and complete consideration for all my lands, improvements and appurtenances thereto belonging.”
Four days later Fleming, who was a real-estate agent, entered into a written agreement with Charles Pedroja by which the latter agreed to buy the prop-erty for $5000. Fleming reported to Weatherby that he had effected a sale, and asked him to make a deed, bui he refused. Fleming brought action against Weatherby for $100 as a commission earned by producing a buyer for the property at the price fixed by the owner. Weatherby died during the litigation, which was continued in the nam,e djf his administratrix.- Judgment was rendered for the plaintiff, from which an appeal is taken.
It is conceded that, regarding the contract signed by Weatherby as one for the sale of his homestead, no action will lie for damages for its breach, since the law prevented his carrying out such an agreement without his wife’s cooperation. (Hodges v. Farnham, 49 Kan. 777, 31 Pac. 606.) The plaintiff contends, however, that the contract included provisions in effect appointing Fleming as Weatherby’s agent to find a buyer for the property at any figure he should see fit over $4900, he to receive such excess as his compensation. The fact that the property is a homestead did not prevent Weatherby from rendering himself liable upon a contract to pay a commission to an agent for finding a purchaser. (Staley v. Hufford, 73 Kan. 686, 85 Pac. 763.) The writing signed by him is so well adapted to securing a real-estate agent’s commission under the arrangement referred to as naturally to suggest that this was what was in the minds of the parties when it was executed. But it is doubtless void for all purposes if it is unambiguous and evidences only an agreement by Weatherby for a conveyance of the property upon stated terms to Fleming or to some one named by him. Upon its face, however, it carries a suggestion of agency. It is drawn in the form of an appointment — of a certificate to all who might be concerned that an authority had been conferred on Fleming. By its terms it grants an “exclusive option to buy or sell” the property within a stated time. The fair interpretation of this is a grant to Fleming of a right to “sell” the property as the agent of Weatherby. Fleming could need no authority to sell it himself after buying it from Weatherby. And the word “sell” in this connection ordinarily means to find a purchaser for. (7 Words & Phrases, p. 6406; Brown v. Gilpin, 75 Kan. 773, 90 Pac. 267.) We think the contract must be interpreted- as including an employment of Fleming as Weatherby’s agent to negotiate a sale of the property, his commission to be the amount by which the selling price exceeded $4900, in this case $100.
The contract between Fleming and Pedroja provided that Fleming was to buy the. property and that Pedroja was to pay him $5000 for it; it recited a payment of $200, which Fleming was to retain as a forfeit if Pedroja should fail of performance on his part. This language conforms to the theory of a purchase by Fleming and a resale to Pedroja. But when the transaction was reported to Weatherby and he was given the opportunity to receive $4900 for making the deed to Pedro j a, Fleming had substantially performed the services by which his commission was to be earned. The judgment is affirmed.
Benson, J., dissents.
|
[
-13,
110,
-8,
95,
26,
96,
42,
-8,
107,
-80,
38,
91,
77,
-39,
20,
105,
6,
13,
65,
107,
-27,
-77,
23,
-23,
-110,
-13,
-47,
-51,
-71,
93,
-12,
87,
77,
32,
74,
-107,
-94,
-126,
-51,
28,
-98,
-124,
10,
-28,
-43,
64,
48,
91,
18,
73,
85,
-113,
-13,
42,
89,
-61,
40,
46,
-17,
41,
-47,
-16,
-81,
-114,
-1,
23,
-79,
36,
-104,
7,
104,
44,
-112,
53,
8,
-24,
87,
38,
-42,
116,
13,
-85,
40,
102,
103,
33,
61,
-17,
-40,
-40,
14,
89,
-115,
-90,
-12,
24,
71,
104,
-97,
-97,
113,
16,
35,
-4,
-27,
21,
28,
108,
5,
-117,
-44,
-93,
13,
-2,
-103,
21,
-1,
-121,
33,
97,
-49,
-94,
77,
101,
60,
-101,
-115,
-7
] |
The opinion of the court was delivered by
Burch, J.:
Ernest M. Jones, an employee of the defendant, commenced the action to recover damages resulting from personal injuries sustained by the derailment of a car operated by the defendant, on which he was riding. When the case came on for trial, it appeared that the plaintiff was then mentally incompetent to maintain the suit. A continuance was taken and his wife was appointed guardian of his person and estate. On motion, the guardian was substituted as plaintiff in the action and filed an amended petition. Issues were made up and tried and the plaintiff recovered. The defendant appeals.
It is argued that since the action was instituted by a person incapable of doing so no action was pending when the guardian was substituted as plaintiff; that the cause of action continued to be the property of Jones and did not become the property of the guardian; and consequently the court was without authority to make a substitution of parties and to proceed in the cause.
From the first petition it appeared that a causé of action existed in favor of Jones which it was the guardian’s duty to prosecute. 'All that was necessary was that a responsible person conduct the litigation for the imbecile. The statute of limitations had not run, the situation of the defendant had not changed, and it would have served no beneficial purpose to require the guardian to begin again my making new service. Technically the order should have been one permitting the guardian to prosecute for her ward instead of an order of substitution, and technically the amended pleading should have been entitled, “Amended petition of Ernest M. Jones, by Ida M. Jones, guardian of his person and estate,” instead of “Amended petition of Ida M. Jones, as guardian of the person and estate of Ernest M. Jones.” The irregularity, however, was formal and not substantial, did not prejudice the defendant in any way, and consequently should be disregarded.
Several grounds of negligence were charged against the defendant — faulty construction of the car, inadaptability of the car to the use to which it was put, and the rate of speed at which it was propelled. It was also contended that Jones was riding on the car at the direction of the defendant’s foreman. Evidence was introduced and the court charged the jury on all these matters.
There was some slight evidence to support the defenses of contributory negligence and assumption of risk which the defendant interposed and which the court submitted to the jury under appropriate instructions.
One of the defenses was that the defendant had settled with the plaintiff for his injuries, and a contract of settlement executed and acknowledged by the plaintiff and his wife and a receipt for the consideration paid them were pleaded.
There was evidence that the contract of settlement originated in a remark made to the defendant’s foreman by Jones while at the hospital that he wanted to know what the company was going to do, as he had run out of money. The remark was communicated to the defendant’s superintendent, who soon afterwards visited Jones at the hospital. At the time of the visit Jones was in as good mental condition as before the injury, was feeling well, was cheerful, and had been advised by his doctors that he would be out of the hospital in a week or ten days. Jones suggested that he be paid $250. Terms of settlement were freely and fairly discussed and finally agreed on. The terms were that Jones should be paid his wages until the time it was believed he would be at work and $10 more ($100), and that the defendant should pay his doctors’ bills and hospital fees. The next day the superintendent returned to the hospital with a written contract of settlement and a receipt, for execution. The contract was shown to Jones and his wife, and Mrs. Jones was asked if she wanted to read the paper. She replied, “No, you read it and then we will all hear it.” The superintendent then read the papers aloud. Some discussion of the terms of settlement took place, and the instruments were signed by Jones and his wife, who acknowledged the execution of the contract before a notary public. The sum of $100 was then paid in cash and the doctors’ bills and hospital fees were afterwards paid. This evidence was corroborated by witnesses who were present when the settlement was arranged and when the instruments were signed, and by others. On the other hand, there was evidence that Jones’s mind had not been right at any time after the injury, that Mrs. Jones asked to be permitted to read the contract and the superintendent said it was of no use, that it had been read to her, and that Mrs. Jones did not understand what she had heard read. The court instructed the jury fully on these important matters.
At the close of the testimony the defendant submitted to the court a number of instructions and seventy-one special questions, with the request that the instructions be given to and the questions be answered by the jury. On the following day the request relating to the special questions was refused. The record reads as follows:
“The court refuses to submit any of said special questions, for the reason that in the opinion of the court improper and proper questions were so unreasonably numerous and intermingled that it would require the court to expend an unreasonable amount of his time and labor in order to redraft the same.”
At the same session of the court the jury were instructed and the cause was argued by counsel for the respective parties. The refusal to submit the special questions is assigned as error.
The questions were too numerous, and proper and improper questions were intermingled. Sufficient deliberation was not given to the preparation of the ques tions, but no “catch questions” appear. It can not be said that the list shows bad faith, and the court did not so find. From the brief it appears that twelve consecutive questions relating to damages for injuries suffered were submitted under a mistaken view of the right of the defendant in such cases. (Barker v. Railway Co., 88 Kan. 767, 783, 129 Pac. 1151.) Many of the questions related to undisputed facts, others do not now seem important, but others related to the vital and controlling facts of the case.
It was entirely proper to inquire what the jury regarded as the defect in the construction of the car, wherein they believed it to have been improperly used, at what rate of speed it was running when the derailment occurred, and what employee of the defendant, if any, directed the plaintiff to ride on the car. Plain questions, although somewhat brief, were asked on these matters.
The defendant was clearly entitled to know on what ground of negligence charged the general verdict was' predicated. (Cole v. Railway Co., ante, p. 132, 139 Pac. 1177.) Two of the questions, ■ differing in form but of the same import, fairly presented that subject.
It was especially important that the facts relating to the settlement be found. The following questions bearing on the fairness and validity of the settlement were proper and very material:
At whose request did Somermier, superintendent of the defendant, call upon the plaintiff and discuss a settlement?
Did the plaintiff have a conversation with Somermier and William Jacobs with reference to a settlement for the injury which the plaintiff claimed to have sustained on June 15, 1910?
Did the plaintiff at any time make any request or demand of said W. H. Somermier for any larger sum than one hundred dollars, the hospital and surgeon bill, prior to and' including the time the release was signed?
Did Somermier make any misrepresentations to the plaintiffs with reference to the contents of the written instrument or release which the plaintiff signed ?
Did Somermier, the defendant’s superintendent, read such written instrument' or release to the plaintiff before plaintiff signed the same?
At the time the plaintiff signed the contract of settlement and received the $100 in cash from the defendant did the plaintiff know and understand what he then did in the matter?
Was the plaintiff’s brain injured to such an extent as to render him incapable of understanding his act when he made the settlement and signed the papers in evidence ?
How long after his injury was it before the plaintiff became mentally incapable of transacting business?
Two questions relating to the time the plaintiff had been working with the car and his knowledge of its construction bore upon issues submitted to the jury, but were not of special importance. Two questions bearing on' the subject of damages were- proper in form and content.
The result is that all the issues could have been reasonably- well covered by seventeen questions. That number was fairly required for the purpose, however, and that number of proper questions covering the issues was tendered.
When the trial occurred the following statute was in force:
“In all cases the jury shall render a general verdict, and the court shall in any case at the request of the parties thereto or either of them, in addition to the general verdict, direct the jury to fixid upon particular questions of fact, to be stated ixx writing by the party or parties requesting the same. When the special findixxg of facts is inconsistent with the general verdict, the former controls the latter, and the court may give j udgment accordingly.” (Civ. Code, § 294.)
This section of the code has since been amended by inserting the following proviso:
“Provided that no one party shall in any case be entitled as a matter of right to request more than ten such special questions but the court may in its discretion allow more than ten special questions.” (Laws 1913, ch. 239.)
The legislature recognized the fact, known to all judges and practitioners, that juries may render general verdicts that do not square with the facts in the case and with the instructions of the court. The only way to test the work of the jury is by requiring them to find the facts, and when the special findings and the general verdict disagree the- special findings must control. Besides this, special findings give the trial court when reviewing the case on a motion for a new trial, and this court on appeal, a grasp of the controversy which can be obtained in no other, way.
Under the statute a party to an action has a right to special findings of fact which does not rest in the discretion of the trial court, and this court has so declared many times. The right to special findings, when requested, is placed in the statute beside the right to a general verdict. The right to special findings, however, is subject to regulation by rule, and is subject to certain conditions which the practical administration of justice makes essential. Thus the application must be timely, the questions must be proper in form, and they must elucidate the facts. They can not be used to cross-examine or to confuse or entrap the jury, and other limitations exist. But unless the right be justly forfeited in some way the court must recognize it.
The number of findings requested is not alone a test of propriety. In lengthy and involved cases many findings may be necessary to develop the essential facts. Proof of this may be found in the extended findings of the court itself when sitting as a trier of the facts in cases of magnitude. Long lists of ques tions, however, frequently consume the time of the court and the jury to no purpose, and questions are sometimes multiplied to cloak a purpose ulterior to that in the mind of the legislature.
The request for special findings presents a problem frequently difficult for the trial lawyer to solve to his own or the court’s satisfaction. Very often he can not know just what questions should be chosen to make up the limited number he is permitted to ask, or just how to frame them, until the evidence is all in. Yet questions ought to be submitted by that time if possible for the benefit of the court in instructing the jury and for the benefit of opposing counsel.
Any earnest lawyer’s zeal is likely to lead him to exuberance. The pressure of time and of the trial may lead to lack of precision in thought and lack of clearness in expression. When the faculty of order and logical sequence was given to mankind it seems there was not enough to fully equip all the lawyers, not even all those who are on the bench; so the court has supervisory power over requests for special findings as a matter of practical necessity arising from the nature of trial procedure. The duty in this respect was stated in an opinion of this court written by Mr. Chief Justice Martin in the case of A. T. & S. F. Rld. Co. v. Ayers, 56 Kan. 176, 42 Pac. 722.
“If the questions are plain and direct in form, are within the issues, are not repetitious, and there is evidence upon which they may be intelligently answered, they ought to be submitted, so that the detailed facts may appear , of record. . . . It is generally error to refuse to submit questions of fact drawn in proper form, material to the case, and based upon the evidence. Section 286 of the civil code has been uniformly held to grant a right to the parties to have proper questions of fact submitted to the jury. ... Of course, it is the duty of the court to revise the questions, to strike out or amend those drawn by the attorneys in improper form or equivocal in their meaning, and those outside of or immaterial to the issues, as also such as are not based upon any evidence in .the case. (Mo. Pac. Rly. Co. v. Holley, 80 Kan. 465, 472, 473.)” (p. 180.)
In the Holley case Mr. Justice Brewer, speaking for the court, said:
“It is the duty of the court to supervise the questions presented — to select.the most important, and arrange them in a clear and natural manner. Thus a symmetry and order will be preserved which will tend to secure truth and justice. The case will go elearly to the jury, and the answers will be more apt to be harmonious and consistent. Of course the object is to get at the facts, and the more clearly and orderly the matters are presented, the more certainly will the facts be ascertained. And over this, as of other matters, the court must exercise a supervision. We do not mean that the court is called upon to write out questions, .or that it should be particular and precise about the phraseology of counsel, for it is the party and not the court that is seeking answers as to particular facts; but only this, that the court should require the parties to present an orderly arrangement of questions, should strike out the trifling and unimportant, and should not permit the jury to be confused and the case lumbered up with useless matter.” (p. 473.)
This business of revising requests for special findings takes time and labor, but so do the preparation of instructions and other matters connected with the trial. Time must be taken and labor must be expended sufficient to try cases according to law and with the end in view of closing the litigation if possible; for just-behind the lawyers, who sometimes mistake or misapply or abuse procedure, stand the real parties in interest, the clients who must pay the bills.
In this case the list of special findings was submitted at the close of the evidence on the day before the jury were instructed. The court had a clear grasp of the issues and of the evidence, as his lucid and logical instructions to the jury show. With the evidence thus in mind it -should not have consumed very much time and should not have been very burdensome to go through the list, checking proper questions and striking out those which were improper and inconsequential. In the instance referred to twelve questions would have gone out at one stroke of the pen. Much space was rightly given in the instructions to the subject of the validity of the settlement, and practically all of the questions relating to that subject fell directly under the instructions and were quite easily segregated. If the list, marked as indicated, had been handed to the defendant’s attorneys with direction to do so, the few approved questions could have been arranged and typewritten while the instructions were being read to the jury.
Much as this court dislikes to disagree with the conscientious and painstaking district court, the matter being one of right and not of discretion, and the attorneys for the defendant having acted in apparent good faith and without desire to oppress either the court or the jury, it is concluded that the request for special findings should not have been wholly denied.
Since the case is to be tried again it is not necessary to discuss other assignments of error.
The judgment of the district court is reversed and the cause is remanded with direction to grant a new trial.
|
[
-16,
108,
-40,
-82,
8,
98,
40,
-38,
81,
-101,
-91,
-109,
-85,
-61,
21,
41,
-6,
31,
-16,
107,
113,
-93,
23,
-93,
-46,
-45,
99,
-59,
51,
72,
118,
-6,
77,
48,
-62,
-43,
102,
8,
69,
86,
-50,
-94,
25,
-27,
-103,
-48,
-16,
120,
84,
15,
65,
-98,
-30,
46,
59,
75,
104,
40,
123,
-87,
-48,
-16,
-113,
-123,
111,
2,
-77,
4,
-100,
-89,
88,
40,
-100,
-79,
48,
-8,
114,
-74,
22,
-12,
105,
-103,
8,
102,
98,
32,
5,
103,
-8,
-104,
46,
-70,
-113,
-89,
-99,
49,
-119,
37,
-73,
-97,
107,
52,
4,
126,
-6,
93,
95,
36,
7,
-117,
-74,
-111,
-17,
96,
-34,
-117,
-22,
5,
48,
113,
-54,
82,
93,
5,
123,
-101,
-33,
-106
] |
The opinion of the court was delivered by
Smith, J.:
This action was brought to recover damages from a physician for the alleged negligent and unskillful use of an X-ray machine in taking pictures of a portion of the body of the appellee, his patient. It was alleged that appellant as such physician advised appellee that such pictures were necessary to enable appellant to make a proper diagnosis of appellee’s malady; that appellant used the machine on four different dates between and including October 28 and November 13, 1911; that he made too many exposures of appellee’s body to the rays of the machine and placed the tube or bulb of the machine too close to appellee’s body and negligently failed to cover the abdomen of appellee or in any manner to protect it from the injurious effects of such rays; that by reason of the unskillful, careless and negligent use of such machine upon the body of the appellee there developed, about November 15, 1911, a sore place known as a third-degree X-ray burn on appellee’s abdomen, which is incurable.
Further, that by reason of the fact stated the appellee has suffered, is suffering and will long continue to suffer intense bodily pain and mental anguish; that prior to receiving such injuries appellee was in good health, except the trouble in his back, and was earning fifty dollars per month; that by reason of the injuries the appellee is wholly incapacitated from labor of any kind and from earning any wages; that appellee has been compelled thereby to employ physicians to treat such injuries and has expended $300 therefor; that appellee has been damaged by the gross negligence of appellant in such treatment in the sum of $10,550.
The appellant in answer made a general denial, alleged that he was a regular practicing physician and surgeon; that appellee came to him for treatment for some kidney trouble; that he made a careful physical examination but found that in the' exercise of ordinary skill and care he could not determine by such examination definitely the disease of which appellee was afflicted ■ — whether or not appellee had a stone in the kidney— except-by the application of the X-ray by which a photograph of the kidney could be taken, and so informed appellee; that appellee agreed that the X-ray photograph should be taken, and it was done; that the X-ray was applied in a scientific manner and according to the most approved manner; that if any injury resulted it was not through any fault, negligence or want of skill of appellant but on account of appellee’s susceptibility to X-ray action, which could not in the exercise of ordinary care, caution and skill have been ascertained; that upon the application of the X-ray he requested appellee to return to him for further treatment, * and if any burn developed as a result of the operation it was through appellee’s own fault and negligence and through his failure to follow the instructions to return to appellant for further treatment and not through any fault, negligence or want of care of the appellant, and if such burn has failed to heal such failure has been caused by the negligence of the appellee; that at and for a long time prior to such examination the appellee had been afflicted with kidney trouble and whatever pain or loss of time appellee has suffered has been the, result of such ailment and not the result of any examination by appellant.
The reply was a general denial.
The first objection urged upon the trial was as to the. admissibility of the expert testimony of Doctor Kenney. Preliminary questions had been asked as follows:
“Q. Do you know anything of the history of the case Doctor ? A. I questioned the patient, Mr. George.
“Q. Did he relate to you the history of the case? A. He and his Dr. Campbell.
“Q. Was the conversation with his Dr. Campbell in the presence of Mr. George? A. Yes, sir.
“By the Court:
“Q. Did you hear the testimony of Mr. George when he was on the witness stand this afternoon? A. Yes, sir.
“Q. Did you hear the testimony of Dr. Campbell on the witness stand ? A. Yes, sir.
“Q. ■ Have you heard the testimony of these other witnesses who testified this evening regarding his condition at the time he was sick ? A. Yes, sir.”
Thereupon the following question was asked by appellee’s attorney:
“Q. I will repeat the question: Bearing in mind the time the burn first appeared on the person injured, about November 12, 1911, ■ and the condition at this time as you discovered in your examination, and the history of the case, what would you say as to the possibility of its ever healing?”
To which question the following objection was made:
“Objected to as incompetent, irrelevant and immaterial, no proper foundation laid, and assuming a state of facts which only the jury can determine the truth of the matter. Overruled. Defendant excepting. And further objection, the testimony involves the statement of different witnesses who have not been testifying to •exactly the same thing, and necessarily calls upon this witness to say what the fact is that those witnesses have testified to. Overruled. Defendant excepting.
“A. Well, there is a possibility of its healing.”
It had also appeared from the evidence that the witness had examined the burn upon appellee’s body, and that he had heard the evidence of witnesses who had preceded him, including the appellee and his attending physician. It is insisted by appellant that the witness should have been examined upon hypothetical questions. In A. T. & S. F. Rld. Co. v. Frazier, 27 Kan. 463, it was said:
“It is insisted that the testimony of a physician, so far as it is expert testimony, must be based either upon personal examination or upon the facts as proved before the jury, or else upon an hypothetical statement. Doubtless this proposition is correct.” (p. 465.)
The physician in this case had heard the details of the application of the X-ray and its effect in the burn, testified to by the appellee and by other witnesses, and he had examined the.burn. There is nothing to indicate that he based his opinions upon the talk he had had with the appellee or the attending physician. There was no dispute in the evidence as to the fact that the appellant applied the X-ray to appellee’s body and that the burn resulted therefrom. He had also examined the burn, its extent, and observed its appearance. He had heard the undisputed evidence as to the number of applications and the time that had elapsed subsequent thereto and prior to the examination by the witness. Probably it is better in such a case to propound hypothetical questions, but expert evidence based upon personal examination by a physician and upon his hearing the sworn testimony of witnesses at a trial is permissible, as we have seen.
The testimony of the witnesses which the physician had heard upon the question of the application of the X-ray and of the resulting, burn and the length of time it had been upon appellee’s body is not very lengthy, and was practically all to about the same effect.
It is contended that the court erred in permitting the appellee to recall Doctor Kenney after the appellant had introduced his evidence in defense and had rested; also in permitting hypothetical questions to be propounded to Doctor Kenney as to what, in his opinion, caused the. burn. It is said that this is a repetition of the same evidence he had given in the appellees’ main case and should have been introduced in the direct case. This is a matter which rests in the sound discretion of the court, and if the appellant had applied therefor the court undoubtedly would have exercised its discretion in permitting the appellant to repeat or offer further evidence in regard to his defense and rebuttal. No such request was made. While the proceeding was somewhat irregular, we think it is not ground for re versal. The court may have had doubts whether the physician did not in some measure base his opinion upon the talk he had had with the appellee and the attending physician and permitted the hypothetical questions to exclude this element.
It is also correctly contended by the appellee that the hypothetical question to the physician was based, in part, upon certain evidence offered by the appellant, which contradicted the testimony of appellee as to the distance the machine was from the body of the appellee when the exposures were made, the number of exposures, etc. These elements could not have been put into a hypothetical question before such witnesses had testified.
Again, it is contended that the court erred in giving instruction No. 6, which reads:
“6. A physician is not released from liability for the burning of a patient by the use of the X-Ray by the fact that the patient quit the treatment of the physician after said patient was burned by the use of said X-Ray, and before said physician was willing that such patient should do so, or that said patient neglected to follow the instructions of. the physician as to the use and care of the affected parts.”
The instructions were evidently taken from Sauers v. Smits, 49 Wash. 557, 95 Pac. 1097, 17 L. R. A., n. s., 1242. In the latter publication there is an extended note to the case. It is contended that this instruction amounts to a departure from the rule of contributory negligence, but we do not concur in this view. The evidence shows that the appellee continued under the professional care of the appellant for a long time after the burn was inflicted, and the evidence is that it grew no better but continually worse. The mere fact of discharging a physician or quitting his care and employing another physician by a patient who believes he has been injured by the negligence of the former physician is not in itself evidence of contributory negligence, and there seems to be no other evidence of negligence on the part of the appellee. We find no error in the instruction. If any act of the appellee had been shown by the evidence to have caused an aggravation of the injury such evidence would probably have been pertinent in mitigation of damages, but the mere fact of the change of physicians does not raise the presumption that damages were increased thereby.
It is also contended that the court erred'in giving instruction No. 7, which reads:
“7. If you believe from the evidence in this case that it is proper for the purpose of diagnosis for a physician to use an X-Ray machine for the purpose of taking pictures, and that when proper instrumentalities and proper care are used that the burning of the patient is not a necessary result of the taking of said X-Ray pictures, then the fact that the patient was severely burned by X-Ray while such pictures were being taken, is a circumstance that may be taken into consideration in determining the questions of the physician’s skill and carefulness, or the want of it in taking such picture. And in this case, if you believe from the evidence that it was proper for the defendant in diagnosing the plaintiff’s case to use an X-Ray machine to take pictures of plaintiff’s kidney, and that in the taking of such pictures the burning of plaintiff was not necessary, but did result, then that fact may be, considered by you in determining whether or not the defendant’s use of said X-Ray was negligent, careless or unskillful.”
The effect of the instruction is that if the jury believed from the evidence that it was proper for the purpose of diagnosis for the physician to use an X-ray machine for the purpose of taking pictures, and when proper instrumentalities and proper care are used that the burning of the patient is not a necessary result of such taking, then the fact' (which was not in dispute) that the patient was severely burned may be considered by the jury in determining whether or not appellant’s use of the X-ray was negligent, careless or unskillful. Reduced to a sentence, it is this: If the taking of such pictures in a proper and careful manner does not necessarily result in injury, then the fact that injury did result is some evidence (which may be rebutted) that proper care and skill were not exercised. We find no error in the instruction.
The defense was that the appellee was unusually susceptible to injury from the X-ray, and the question was submitted to the jury, whether the injury resulted from such susceptibility or from want of care. Questions Nos. 5 and 6, submitted to the jury, and the answers thereto, read:
“5. Did he exercise ordinary skill and care in the use of the X-Ray upon the plaintiff in endeavoring to diagnose the disease with which the plaintiff was afflicted? Answer. No.
“6. Did he use his best judgment' as to the manner and extent of the application of the X-Ray on the plaintiff? Answer. No.”
The answers to these questions constitute a direct finding of want of due care, and negligence.
It is contended that the court erred in holding that the verdict was sustained by sufficient evidence. In defense appellant produced the testimony of a number of physicians, who were X-ray operators, which tended to show that a burn would not be expected by the use of an X-ray with less than two or three times the amount of current actually used in this case as shown by the testimony. On the other hand, there was evidence that the use made of the X-ray machine and current would be expected in ordinary cases to inflict the bum which the appellee suffered. ' Upon such conflicting evidence it was the especial province of the jury to determine the fact.
This is a question of science in Which the average juryman has no special knowledge to enable him to test the' credibility and accuracy of testimony; still it does not follow that the mere number of witnesses on either side determines the preponderance of the evidence, but the general rule must apply that where the jury determined the weight of conflicting evidence and the trial court approved the verdict and rendered judgment thereon this court will not reverse the judgment even though it might appear to it that the preponderance was on the other side.
The judgment is affirmed.
|
[
-80,
-4,
-104,
-99,
26,
-32,
-88,
-118,
85,
-32,
-89,
51,
-83,
11,
-116,
111,
-95,
61,
80,
99,
-10,
-77,
87,
43,
-14,
-13,
-5,
-41,
-71,
-52,
-20,
-4,
77,
56,
2,
-107,
102,
26,
89,
80,
-58,
-108,
-87,
-23,
121,
0,
48,
126,
-48,
67,
49,
-98,
-25,
46,
63,
-57,
41,
40,
123,
41,
-64,
-79,
-128,
-115,
125,
16,
-79,
6,
30,
101,
-40,
62,
-40,
-79,
72,
-4,
114,
-74,
-61,
116,
127,
-87,
24,
98,
102,
-80,
85,
-27,
120,
-72,
47,
-82,
-99,
-91,
-109,
88,
-56,
-119,
-66,
-103,
108,
84,
-113,
126,
-11,
93,
26,
36,
9,
-101,
-106,
-77,
-49,
121,
-100,
58,
-21,
-117,
0,
113,
-44,
-94,
88,
69,
123,
-109,
-50,
-102
] |
The opinion of the court was delivered by
Smith, J.:
July 10, 1912, Kreitzer and Roll filed a petition against the Monarch Portland Cement Company, alleging, among other things, that they were owners of 907% shares and 758 shares respectively of the capital stock of the defendant, a Kansas corporation capitalized at four million dollars, two million being common and two million preferred stock; that the company was the owner of property worth from one to one and one-fourth million dollars, that financial depression and overproduction of cement with unreasonable competition had caused the defendant to operate its plant for the past two years at a loss of more than $500,000; that with the preferred stock went an agreement called “Special Contract,” entitling the holder to an amount of free cement equal to the face value of such preferred stock, which contract amounted to an agreement to pay an unearned dividend and was ultra vires and void; that under such contract cement amounting to $180,000 had been withdrawn; that the taxes for the year 1911 of more' than $9000 were due on real estate which would be sold unless paid; that the company owed unsecured creditors about $60,000 past due; that attachment suits were threatened which would endanger the solvency of the company; that there were outstanding mortgages of $39,100 and the company was in imminent danger of insolvency, and would become insolvent and the creditors and stockholders caused great loss unless protected by the court. The prayer was for the appointment of a receiver to take charge, marshal assets, sell off property, liquidate the debts, preserve the plant intact and continue business under the directions of the court.
The answer, signed by William Keith, attorney for the defendant, was an admission of all the allegations contained in the petition, a consent to a speedy trial and a confession that a receiver should be appointed as prayed for. On July 10, 1912, in consideration of the application and answer and proofs adduced, it was found that the company was not insolvent but in imminent danger of insolvency, and that the petition was generally true, and a receiver was appointed in accordance with the prayer of the petition, the journal entry being approved by the attorneys for the plaintiffs and by William Keith, attorney for the defendant. On June 6, 1913, the receiver made an application to sell property, reciting that he had collected upwards of $50,000 of which there remained upwards of $9000 on hand; that he had bills receivable amounting to more than $33,000 and accounts receivable amounting to more than $24,000, and certain miscellaneous real estate of the properties he had not been able to sell; that the estate was in debt on open account more than $34,-000, that there were taxes due amounting to more than $7000, and reciting certain other claims against the estate and setting out various other matters and exhibits. On June 18, 1913, this application came on for hearing, William Keith appearing personally among others, whereupon it was stated by counsel for the present appellants that the stockholders Keith and Connet desired to file a petition in intervention; that they represented about 900 shares of common stock and about 100 shares of preferred — the purpose being to order the receiver to sell off certain miscellaneous properties and realize enough money to take care of the debts and put the plant in operation. After some further colloquy the present appellants filed their petition in intervention setting up that they were owners of certain common and preferred stock; that they with others had an interest in the prevention of the sale of the plant and its main assets; that under the plaintiffs’ petition the court had no jurisdiction to order the sale thereof; that the company had by its attorney, William Keith, answered consenting to the appointment of a receiver and continuing the business, but had not con sented to a sale of all the assets; that the company was solvent and that the order of sale requested by the receiver would tend to destroy the value of the intervenors’ stock, and other allegations touching the assets and conditions of the company followed by the averment that the aim of the receiver, who had been appointed to conserve the assets, was to produce dissolution and wind up the affairs contrary to the object and aim of the original petition and prayer. They asked that his application be denied and that he be directed to sell certain items of property and report progress. On June 23, 1913, a continuation of the proceedings was had. Other parties had filed an intervening petition, and after the taking of considerable testimony and an amendment to the intervenors’ petition, on June 28 judgment was rendered. The court found that the prayer of the intervening petition should be denied and that the allegations thereof were not sustained by the evidence; that the application of the receiver for the sale was true and should be allowed. It was therefore adjudged that all the unsold property of the company be sold and that the officers of the company execute deeds of conveyance in accordance with such sale; that from the proceeds the costs and taxes should first be paid and then the claims of certain creditors satisfied, and the remainder, if any, should belong to the defendant company; that the stockholders who had an interest in the assets and property of the company should in the event of dissolution have certain prior claims therein set forth. The sale was reported on July —, to which report the intervenors filed objections and which sale was confirmed July 25. The assets brought $175,000. On August —, 1913, the receiver applied for a modification of the order of confirmation, which was granted. Notice of appeal was served on the — day of July, 1913. On February 13, 1914, the receiver filed an extended report to the effect that the assets of the com-, pany had been converted into cash, that the expenses of the receiver had been practically paid; that the purchaser was now able to furnish receipts and releases on the part of all the preferred stockholders except shares amounting to the face value of $92,700; that on September 10, 1913, the stockholders of the company at the annual meeting upon written notice resolved to ratify the action of the receiver in the sale of the assets, more than two-thirds voting therefor, and also by a similar vote of more than two-thirds of the outstanding shares of stock resolved to dissolve the corporation and divide its assets among the persons legally entitled thereto. The report suggested that an order of dissolution be made directing the apportioning of the assets in accordance with such resolution. On February 21, 1914, the court found that the objections filed by the intervenors were not supported by the evidence; that the receiver’s report was correct, and that by reason of the resolutions referred to it would be to the best interest of the corporation that it be dissolved, and such dissolution and distribution of the assets were adjudged.
The principal errors now urged are the appointment of a receiver, the order to sell the property, and the decree of dissolution and distribution. Certain other complaints touching rulings on evidence and errors occurring at the trial are found to be without sufficient merit to warrant separate consideration.
It is argued that without an actual showing of insolvency the court was not authorized to appoint a receiver, and that without statutory authority it was without jurisdiction to decree dissolution. It will be observed that the petition alleged imminent danger of insolvency and a condition of affairs said to require the protection of the court for the benefit of the creditors and stockholders, one of the causes of this condition being the unlawful “special contract” attached to the shares of preferred stock. Not only were all of the allegations of the petition expressly admitted by one of the present intervenors as attorney for the company, but the receiver remained, in office from July 10, 1912, until July 6,1913, before making application to sell the assets, and it does not appear that either of the intervenors made any objections to the proceeding until June 13, 1913, nearly a year after the receiver had been appointed, and then their petition in intervention expressly sought the authority of the court for a sale by the receiver of a portion instead of all the assets. After this certain other attorneys appeared and intervened for a reorganization committee representing 50 per cent of the common stock and 75 per cent of the preferred stock who desired the assets all sold, and after full consideration the court ordered the sale as prayed for by the receiver, directing that the entire assets be sold, though not in bulk. Having to the extent indicated recognized the truth of the petition for the appointment of the receiver and the authority of the court over him, it does not seem that the appellants are in position now to question his appointment.
Neither can it avail them to. urge error in decreeing the very dissolution which the stockholders had brought about. No question is made that the stockholders, by a two-thirds vote, had the power to do this (Gen. Stat. 1909, §§ 1714, 1727), and having exercised such power, and then through the officer of the court in charge of the assets having requested or suggested a decree of dissolution, a stockholder who was fairly outvoted has no standing to question the effectuality of such dissolution; and whether or not the court had jurisdiction to enteí a decree in accordance therewith, such a decree was entered and was recognized and became an accomplished fact. Hence it is unnecessary to inquire as to the power of the court to appoint the receiver or the validity of its order to sell the assets, for these matters, like the alleged errors as to denying the petition of the intervenors and the admission of evidence touching the stock holdings, have now become moot, and whatever view we might take of them would be merely academic so far as they could affect the pres ent situation. A reversal of the decree of dissolution and order of distribution would leave the corporation still dissolved by the requisite vote of the stockholders and the distribution already substantially made. It is not our province to decide moot cases. (Kansas City v. The State, ex rel., 66 Kan. 779, 71 Pac. 1127; Teterick v. Parsons, 68 Kan. 879, 64 Pac. 1028, 90 Kan. 21; Bauman v. Mason, 91 Kan. 728, 139 Pac. 406.)
The judgment is affirmed.
|
[
-76,
124,
-44,
-100,
26,
96,
58,
-38,
121,
97,
-91,
83,
-51,
31,
4,
105,
-30,
29,
-48,
106,
118,
-13,
23,
-101,
-46,
-45,
-7,
-51,
-79,
94,
-27,
125,
76,
32,
10,
-121,
-90,
-42,
69,
92,
-50,
5,
40,
-19,
-7,
0,
52,
43,
50,
73,
81,
-100,
-13,
45,
25,
-49,
77,
44,
123,
45,
-64,
-8,
-86,
-122,
-17,
22,
19,
-128,
-68,
-57,
-40,
14,
-104,
49,
8,
-23,
83,
54,
-58,
-12,
111,
73,
8,
98,
98,
81,
21,
-25,
90,
-104,
15,
-49,
-115,
-26,
21,
88,
1,
100,
-66,
-99,
109,
22,
-126,
-34,
-18,
29,
89,
45,
3,
-53,
-10,
-125,
7,
124,
-102,
3,
-21,
-126,
48,
112,
-120,
32,
94,
103,
122,
-109,
79,
-80
] |
The opinion of the court was delivered by
Mason, J.:
The Randolph Lumber Company, a corporation engaged in the retail lumber business at Randolph, brought action against the Western Silo Company, a corporation manufacturing and selling wooden silos. A demurrer was sustained to the plaintiff’s evidence, and it appeals.
The petition alleged that the defendant had employed the plaintiff as its agent in making sales at a commission of 20 and 5 per cent; that six sales had been made, the commissions amounting to $391.20; that the plaintiff had incurred $146.90 in expenses for which it was entitled to reimbursement, and had been paid $200, leaving a balance due of $338.10.
The answer alleged that the defendant had never authorized the contract pleaded by the plaintiff; that a salesman of the defendant had undertaken to make such a contract with the plaintiff (except that the com mission was 20 per cent flat, on list prices), subject to the defendant’s approval, but such approval had never been given or asked; that the plaintiff sold the six silos, and according to the terms of the contract that was being negotiated would have been entitled to commissions amounting to $355.80, except for the fact that the sales were made in each instance for less than the list price, the total difference amounting to $164, which reduced the commissions to $191.80; the two-hundred-dollár payment was admitted, and also an expense item of $131.90; a net indebtedness of $127.70 was acknowledged, for which the defendant offered to confess judgment.
The evidence was to the effect that a salesman of the defendant, assuming to have authority for the purpose, made the contract with the plaintiff as alleged in the petition; that the sales were negotiated at prices fixed by the salesman referred to, and that they were reported to and filled by the defendant.
The question involved is whether there was any evidence of authority on the part of the salesman to make the contract relied on by the plaintiff, or of facts that would preclude the defendant from denying such authority. We think the case falls within the rule that the principal can not accept the fruits of a contract made in his behalf and at the same time reject any of its burdens on the ground that it was unauthorized. (Evans v. Insurance Co., 87 Kan. 641, 125 Pac. 86; Wagon Co. v. Wilson, 79 Kan. 633, 101 Pac. 4; Bank of Lakin v. National Bank, 57 Kan. 183, 45 Pac. 587.) The company could not ratify a sale made at less than the authorized price and charge the agent with the difference. (Halloway v. Milling Co., 77 Kan. 76, 93 Pac. 577.) It is true there was no direct evidence that the defendant at the ■ time- of filling the orders knew the price at which the sales were made or the commission its salesman had agreed to pay to the local agent. These matters, at least as to the selling price, might perhaps be inferred, but in any event the jury would have been justified in finding that the salesman was acting within the apparent scope of his employment, and that the plaintiff was protected in dealing with him on the assumption that his acts were authorized. (Townsend v. Railway Co., 88 Kan. 260, 128 Pac. 389.)
The judgment is reversed and a new trial ordered.
|
[
48,
-6,
-4,
-115,
26,
104,
58,
-70,
92,
-31,
39,
83,
-19,
-58,
20,
123,
-9,
125,
81,
106,
85,
-77,
19,
99,
-46,
-77,
-47,
-59,
-67,
-53,
-3,
92,
76,
48,
10,
-107,
-30,
-62,
-59,
24,
78,
4,
-103,
-18,
-7,
64,
48,
-103,
20,
91,
113,
-122,
-13,
36,
25,
-53,
43,
46,
111,
41,
-48,
-16,
-78,
-115,
127,
22,
49,
36,
-102,
7,
-24,
30,
-112,
-80,
9,
-56,
115,
-74,
-122,
116,
107,
-103,
8,
102,
99,
34,
-111,
-19,
-36,
-104,
46,
-34,
-99,
-89,
16,
24,
3,
105,
-65,
-99,
116,
16,
54,
118,
-6,
29,
-98,
108,
11,
-113,
-10,
-32,
-113,
118,
30,
7,
-18,
-126,
16,
112,
-49,
-78,
93,
103,
115,
-101,
-114,
-118
] |
Per Curiam:
This case was very fully presented and ably argued by counsel for both parties, and was decided upon the questions which were considered determinative of all the issues involved therein.
On rehearing certain questions have been again fully presented and have been again considered. The court is satisfied with the original opinion (Holmes v. Holt, 90 Kan. 774, 136 Pac. 246), and it is adhered to.
|
[
48,
-22,
-27,
63,
78,
96,
32,
-101,
7,
-15,
35,
115,
45,
-61,
21,
113,
-66,
47,
81,
107,
-42,
-73,
22,
83,
-16,
-10,
123,
-43,
-79,
-52,
-81,
94,
76,
32,
-62,
-43,
98,
-53,
-11,
18,
-122,
-119,
-72,
47,
83,
114,
52,
59,
112,
14,
49,
87,
-13,
-86,
31,
-57,
41,
40,
106,
-11,
80,
112,
10,
7,
93,
6,
-77,
-90,
-68,
75,
88,
46,
-64,
57,
9,
-20,
115,
-90,
-122,
84,
105,
-87,
-128,
98,
98,
35,
112,
-49,
56,
-102,
119,
-2,
45,
-89,
-71,
88,
-21,
33,
-105,
-37,
117,
16,
7,
-22,
-19,
85,
29,
100,
12,
-113,
-122,
-93,
23,
117,
-98,
74,
-13,
49,
24,
68,
-59,
90,
84,
-61,
31,
-5,
-114,
-66
] |
The opinion of the court was delivered by
Johnston, C. J.:
These actions were brought to recover rents for the use of a certain tract of land the possession of which had been the subject Of earlier litigation. (Stouffer v. Harlan, 68 Kan. 135, 74 Pac. 610, 64 L. R. A. 320, 104 Am. St. Rep. 396; Stouffer v. Harlan, 84 Kan. 307, 114 Pac. 385.) The first of the actions now under consideration, in which James S. Harlan was named as plaintiff, was brought on August 14, 1909, to recover from Sanford Loomis the rentals of the land for the years 1906, 1907 and 1908 at the rate of $500 for each year. Subsequently it was discovered that a mistake had been made in naming James S. Harlan as plaintiff, and on an application made on June 1, 1911, the court permitted an amendment of the petition to be made by the substitution as plaintiff of Richard D. Harlan, who was the executor of the estate of Phineas Prouty, deceased, which estate owned the land for the use of which the action was brought. On July 17, 1911, a second action was brought by the appellee against appellant to recover for the use of the same land for the years 1909 and 1910 a rental of $500 for each of those years. The cases were consolidated for the purpose of trial, and it was determined, against the contention of appellant, that the causes of action for the rentals were not barred, and that appellee was entitled to recover for the use of the land during the period it had been occupied by appellant a rental of $330 for each year with interest at the rate of six per cent per annum.
The principal contention on these appeals is that the right of recovery for the earlier years, at least, was barred by the statute of limitations. It is insisted that the commencement of the action in the name of James S. Harlan did not operate to toll the statute of limitations, and that when the- amendment was made substituting appellee as plaintiff the three-year statute of limitations had run on the claims for rent set out in the original petition. There is no contention that the amendment substituting one party for another was improperly allowed, but it is contended that James S. Harlan was a stranger to the land occupied by appellant and to the controversy as to the rentals for its use, and that an action in his name did not arrest the running of the statute on the claims, and that the amendment substituting Richard D. Harlan, executor, as plaintiff did not relate back to the commencement of the action. It appears that James S. Harlan had acted as agent and representative of the owner of the land, and had been named as a party in the earlier suits respecting the possession of the land. Through a mistake of the pleader he was named as plaintiff instead of his brother, who was then the sole representative of the estate. Appellant could not have been misled, as he had corresponded with James S. Harlan about the rent and had assumed that he was in control of it. Besides, the recovery sought throughout the litigation was the value of the use of the particular tract of land occupied by appellant for a definite period of years which was specified. The nature and purpose of the action was the same after as before the amendment. In Service v. Bank, 62 Kan. 857, 62 Pac. 670, it was held that an amendment which merely substitutes one party as plaintiff for another to correct a mistake does not change the cause of action, and that the statute of limitations stops running as to the substituted plaintiff when the action was begun. It was there said that:
“As the amendment did not introduce a new claim or cause of action it is not to be deemed a change of the action itself; and, under the liberal provisions of our code authorizing amendments, we think the amendment relates back to the beginning of the action, and that the statute of limitations did not run against the owner of the paper during he pendency of the proceeding.” (p. 862.)
Other supporting authorities are: Weaver v. Young, 37 Kan. 70, 14 Pac. 458; Hucklebridge v. Railway Co., 66 Kan. 443, 71 Pac. 814; Maurer v. Miller, 77 Kan. 92, 93 Pac. 596; Cooley v. Gilliam, 80 Kan. 278, 102 Pac. 1091, and Cunningham v. Patterson, 89 Kan. 684, 132 Pac. 198.
It is contended that the action brought by appellee is founded on tort, and therefore the two-year statute of limitations should be applied. The record discloses that the action was not for trespass to real estate, but was brought to recover rents, an action founded on implied contract, and therefore the three-year statute of limitations is applicable. (Gatton v. Tolley, 22 Kan. 678; Seibert v. Baxter, 36 Kan. 189, 12 Pac. 934; Mo. Pac. Rly. Co. v. Houseman, 41 Kan. 304, 21 Pac. 284.)
There is nothing substantial in the claim that appellee should be regarded as having abandoned ,the land and estopped to assert the claims for its use by appellant.
The judgment of the district court is affirmed.
|
[
116,
98,
-4,
46,
-102,
96,
42,
-80,
115,
-95,
-90,
83,
105,
-41,
13,
45,
114,
13,
113,
104,
-26,
-77,
23,
-86,
18,
-13,
-39,
-59,
-80,
77,
-12,
70,
76,
0,
-54,
53,
-58,
-62,
77,
-108,
-114,
4,
27,
77,
-39,
96,
52,
123,
18,
95,
49,
-49,
-13,
40,
20,
-41,
72,
45,
-49,
-83,
-48,
-16,
-102,
-123,
-23,
18,
49,
68,
-104,
-63,
104,
28,
-104,
61,
43,
-20,
119,
-90,
-58,
-12,
71,
-103,
40,
102,
102,
16,
109,
-49,
-8,
-103,
6,
-108,
13,
-90,
-112,
80,
-125,
64,
-66,
-99,
93,
-48,
1,
126,
-27,
-36,
-107,
110,
13,
-114,
-42,
-93,
15,
112,
-126,
81,
-45,
3,
-92,
96,
-115,
-124,
92,
119,
19,
-101,
-121,
-120
] |
The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff seeks to recover ninety cents actual and $1200 exemplary damages for delay in the transmission and delivery of a telegram notifying the ■plaintiff of his father’s death.
1. The defendant, for a part of its answer, set up as a defense that the contract for the transmission and delivery of the message was made in Vermont; that no negligence was committed on the part of the defendant in Kansas; that any negligence, if any, in the transmission and delivery of the telegram occurred exclusively within the state of Missouri, and that by the-laws of the states of Vermont and Missouri a master is not liable for punitive or exemplary damages unless the master participated in, authorized, or ratified the tort committed by the servant; and that the defendant did not participate in, authorize, or ratify the breach of any duty committed by its servants in the transmission of the telegram. A demurrer to this part of the answer was sustained. From this the defendant appeals.
There is some conflict in the decisions of the courts of this country concerning the liability of a telegraph company for exemplary or punitive damages for failure to deliver a message, where by the law of the state from which the message was sent such damages can not be recovered. We think the rule is that for failure to deliver a message the person to whom it is sent can recover such damages as is permitted by the law of the state in which the message was to be delivered, although that law may be contrary to the law of the state from which it was sent. Supporting this proposition, see North Packing & Provision Co. v. W. U. Tel. Co., 70 Ill. App. 275; Howard v. Western Union Tel. Co., 119 Ky. 625, 86 S. W. 982, 7 Ann. Cas. 1065; Western Union Telegraph Co. v. Lacer, 122 Ky. 839, 93 S. W. 34, 5 L. R. A., n. s., 751; Western Union Telegraph Co. v. Hill, 163 Ala. 18, 50 South. 248, 23 L. R. A., n. s., 648; Gentle v. Western Union Telegraph Co., 82 Ark. 96, 100 S. W. 742; Balderston v. Telegraph Co., 79 S. Car. 160, 60 S. E. 435; Carnahan v. The Western Union Telegraph Company, 89 Ind. 526. Exemplary damages have been allowed in this state under similar circumstances. (Telegraph Co. v. Gilstrap, 77 Kan. 191, 94 Pac. 122; McInturf v. Telegraph Co., 81 Kan. 476, 106 Pac. 282.)
Can the plaintiff recover under the laws of this state, when the negligence of the defendant, if any, occurred in Missouri? The message should have been delivered promptly to the plaintiff in Topeka. The delay in the delivery of the message caused the injury for which this action is brought. That delay may have been caused by the defendant’s negligence in Missouri, but the plaintiff’s action is not for that negligence. • It is for delay in delivering the message in Kansas. The message was to be transmitted from Vermont to .Topeka, not from Vermont to Missouri and then from Missouri to Topeka. The plaintiff’s right to recover, so far as the laws of the several states through which the message passed are concerned, is governed by the laws of this state. The plaintiff’s demurrer to this part of the answer was properly sustained.
2. The answer alleged that the receipt, transmission and delivery of the message was a part of interstate commerce and was governed by the act of congress approved June 18, 1910 (Part 1, 36'U. S. Stat. at Large, ch. 309, pp. 539, 544), and that by the defendant’s rule its liability was limited in case of an unrepeated message to the amount received for sending the same, and in case of a repeated message to fifty times the sum received; in no event to exceed $50. A demurrer to this defense was overruled. From this the plaintiff filed a cross-appeal.
Attached to the defendant’s ánswer as “Exhibit A” was a copy of the telegram, on the back of which this language appeared:
“All messages taken by this company are subject to the following terms which are hereby agreed to. To guard against mistakes or delays, the sender of a message should order it repeated, that is, telegraphed back to the originating office for comparison. For this, one-half the unrepeated message rate is charged in addition. Unless otherwise indicated on its face, this is an unrepeated message and paid for as such, in consideration whereof it is agreed between the sender of the message and this company as follows:
“1. The company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated message, beyond the amount received for sending the same; nor for, mistakes or delays in the transmission or delivery, or for non-delivery of any repeated message, beyond fifty times the sum received for sending the same, unless specially valued; nor in any case for delays arising from unavoidable interruption in the working of its lines; nor for errors in cipher or obscure messages.
“2. In any event the company shall not be liable for damages for any mistakes or delay in the transmission or delivery, or for the non-delivery of this message, whether caused by the negligence of its servants or otherwise, beyond the.sum of fifty dollars, at which amount this message is hereby valued, unless a greater value is stated in writing hereon at the time the message is offered to the company for transmission, and an additional sum paid or agreed to be paid based on such value equal to one-tenth of one per cent thereof.
“3. The company is hereby made the agent of the sender, without liability, to forward this message over the lines of any other company when necessary to reach its destination.
“4. Messages will be delivered free within one-half mile of the company’s office in towns of 5000 population or less, and within one mile of such office in other cities or ■ towns. Beyond these limits the company does not undertake to make delivery, but will, without liability, at the sender’s request, as his agent and at his expense, endeavor to contract for him for such delivery at a reasonable price.
“5. No responsibility attaches to this company concerning messages until the same are accepted at one of its transmitting offices; and if a message is sent to such office by one of the company’s messengers, he acts for that purpose as the agent of the sender.
“6. The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission.
“7. No employee .of the company is authorized to vary the foregoing.”
Can the plaintiff recover damages other than those specified in the defendant’s answer and in the printed rules as set out in the exhibit attached thereto ?
The defendant argues that congress has taken exclusive control of interstate telegraphic business by the amendatory act of June 18, Í910 (Part 1, 36 U. S. Stat. at Large, ch. 309, pp.' 539, 544). By this act interstate commerce in telegraph messages is placed under the control of the interstate commerce commission. Under this act, common carriers of interstate commerce may limit the amount of the recovery on account of damage inflicted to the property of a shipper by the carrier’s negligence, and these limitations have been held valid and binding. (Kirby v. Railroad Co., 94 Kan. 485, 146 Pac. 1183, and cases there cited; Horse & Mule Co. v. Railway Co., 95 Kan. 681, 683, 149 Pac. 436; Ray v. Railway Co., 96 Kan. 8, 149 Pac. 397.) The rules that justify common carriers of interstate commerce in limiting their liability for their negligence also justify interstate carriers of telegraph messages in limiting their liability for their negligence.
Prior to the passage of the act of congress in June, 1910, whatever may have been the law governing the right to recover damages on account of the delay in the delivery of telegraph messages, since the passage of that act the decisions appear almost unanimous that the limitations on the liability-of telegraph companies for damages caused by delay in delivering the messages are governed by the regulation above set out, and that no other recovery can be had. (West. Un. Tel. Co. v. Brown, 234 U. S. 542, 34 Sup. Ct. Rep. 955, 58 L. Ed. 1457; H. B. Williams v. Western Union Telegraph Co., 203 Fed. 140; Western U. Teleg. Co. v. Dant, 42 App. D. C. 398; Western Union Telegraph Co. v. Compton, [Ark. 1914] 169 S. W. 946; Western Union Telegraph Co. v. Johnson, [Ark. 1914] 171 S. W. 859; Western Union Telegraph Co. v. Simpson, [Ark. 1915] 174 S. W. 232; Western Union Tel. Co. v. Bilisoly, 116 Va. 562, 82 S. E. 91; W. U. Tel. Co. v. N. B’k. Berryville, 116 Va. 1009, 83 S. E. 424; Strause Co. v. West. Un. Tel. Co., 59 Pa. Super. Ct. 122; White v. Western Union Telegraph Co., 33 I. C. C. 500.) The demurrer to this part of the answer was properly overruled.
It follows that the judgments are affirmed.
|
[
-112,
124,
-72,
-65,
10,
96,
42,
-102,
49,
-31,
-94,
83,
-55,
-63,
-127,
107,
-13,
59,
-48,
-21,
-44,
-73,
15,
-54,
-38,
-45,
-77,
-44,
-109,
121,
-20,
-49,
76,
32,
-54,
21,
70,
74,
-55,
-36,
-54,
4,
9,
-11,
89,
1,
48,
89,
18,
67,
113,
-49,
-13,
46,
24,
-62,
-88,
58,
105,
-71,
-64,
-80,
-70,
-113,
125,
18,
-94,
5,
-104,
39,
80,
12,
-104,
49,
-119,
-24,
-8,
-73,
-122,
-12,
103,
-87,
1,
98,
103,
33,
13,
99,
-52,
-120,
46,
-10,
-97,
-25,
-106,
40,
43,
45,
-73,
29,
58,
20,
-121,
-8,
-70,
21,
23,
108,
3,
-113,
-108,
-89,
-81,
126,
-98,
-33,
-17,
-95,
32,
112,
-52,
-96,
93,
83,
122,
-101,
-97,
-65
] |
The opinion of the court was delivered by
Johnston, C. J.:
Plaintiff and defendant, who were each the owners of one-half of the capital stock of The Garden City Land & Immigration Company, in November, 1910, entered into a written contract whereby defendant was to transfer to plaintiff his stock in the corporation, in consideration of which plaintiff was to causé the corporation to convey certain properties and securities to defendant and assume and pay all debts and obligations of the corporation and relieve the defendant from any liability on account thereof. Attached to the contract was a statement of the condition of the company with a guaranty that the same was correct “errors and omissions excepted.” This action for the sum of $5557.49 was brought by plaintiff in the year 1914, who alleged in his petition that soon after the transaction above mentioned it was discovered that at the time of the exchange of property the corporation owed certain obligations totaling $2114.98, a half of which was claimed and sued for in plaintiff’s action; that said obligations were not shown upon the statement, and that the defendant, conniving with the bookkeeper of the corporation, one Chan. B. Campbell, had concealed the existence of these obligations. As a second cause of action, plaintiff alleged that at the time of the transaction mentioned defendant had in his possession $4500 of the corporate funds, the existence of which fact he also concealed. The court sustained a motion made by defendant to strike out all allegations of fraud, and also sustained a demurrer as to the first count of plaintiff’s amended petition but overruled the same as to the second count. Upon these rulings plaintiff brings the case here..
It is contended by defendant that the parts stricken out of plaintiff’s petition were immaterial for the reason that the petition showed upon its face that the action was one for relief upon the ground of fraud, and being brought more than two years from the time the fraud was alleged to have been discovered it did not state a cause of action. Defendant also complains that the court should have sustained his demurrer as to the second count of plaintiff’s petition.
The action is based on the account stated, which formed a part of the written agreement. This account purported to contain an itemized list of all the assets and liabilities of the company. The account is an acknowledgment of the statements made therein as well as of liability, but it is only prima facie evidence of its correctnes. It may be opened up for mistake or fraud and corrected within a reasonable time. (Clark v. Marbourg, 33 Kan. 471, 6 Pac. 548; Schmoker v. Miller, 89 Kan. 594, 132 Pac. 158; 1 Cyc. 451.) It is alleged that the account in question is not only incorrect in that a number of liabilities of the company, which the plaintiff has since been compelled to pay, were omitted, but that this was done through the con nivance and fraud of the defendant. Fraud being one of the grounds for opening and correcting the account, the allegations that the settlement and accounting were fraudulently-done were pertinent and proper, and the ruling striking out the averments as to the fraud of the defendant can not therefore be sustained. That the account is open to correction is shown further by a provision of the agreement made between the parties. In it is a statement that the account is correct “errors and omissions excepted,” and therefore on its face it does not purport to be a finality.
It is insisted by the defendant that the case should be treated as an action for relief on the ground of fraud, and that so considered it was barred after two years from the time it accrued. It is rather an action to open up an account and settlement between the parties, to make a new settlement, and to adjust the rights of the parties under their written agreement. The mere fact that mistakes occurred, or that there was deception practiced in the settlement sought to be set aside so that a new settlement may be made, does not make the action one for relief on the ground of fraud. It is still an accounting under the written agreement and does not fall within the two-year statute of limitations.
The decision of the trial court striking out of the petition the averments of fraud as well as the one sustaining a demurrer to the first count of the petition is reversed, and the decision overruling the demurrer to the second count of the petition is affirmed.
|
[
-14,
126,
-40,
-116,
26,
-32,
40,
-102,
120,
32,
-89,
83,
-23,
-34,
12,
97,
-29,
109,
-48,
106,
102,
-77,
7,
-30,
-46,
-45,
-23,
-43,
49,
78,
-12,
86,
76,
32,
-118,
-107,
-26,
2,
-63,
-100,
-38,
0,
-88,
68,
-7,
96,
52,
59,
0,
79,
81,
-114,
-13,
32,
29,
74,
104,
41,
-21,
-87,
-47,
-8,
-85,
-123,
111,
23,
48,
102,
-100,
3,
-56,
60,
-112,
113,
33,
-32,
114,
-74,
-106,
-12,
107,
-71,
72,
34,
98,
0,
85,
-25,
126,
-104,
46,
-2,
-113,
-90,
22,
88,
-117,
65,
-66,
-99,
84,
16,
-89,
118,
-2,
28,
28,
108,
7,
-113,
-44,
-93,
-113,
-10,
-102,
3,
-1,
-93,
-112,
96,
-52,
34,
93,
99,
59,
19,
-113,
-40
] |
The opinion of the court was delivered by
Burch, J.:
The action was one to recover on two promissory notes. The petition was amended and a demurrer to the amended petition was sustained on the ground that the, action was barred by the statute of limitations. The plaintiff appeals.
The petition contained two causes of action, one on each note. The circumstances are such that if one be barred the other is barred, and consequently but one need be considered. One of the notes, with the indorsements upon it, reads as follows:
“$22§.00 Lena, III., Mar. 26, 1892.
“Thirty months after date I promise to pay to the order of G. M. Holley Two Hundred Twenty five Dollars. Value received with interest before and after maturity at the rate of 7 per cent per annum until paid.
H. G. Myees.
“Received $75.00 on the within Aug. 81st, 1909.
“Without recourse pay to John Liphart.
G. M. Holley.”
It will be observed that the five-year statute of limitations had run before the date of the $75 credit. The action was commenced within five years after the date of that credit, but the petition did not allege that the $75 was paid by the maker as part payment of the principal or interest on the note. The petition was amended to include such an allegation, but the amendment was not made until more than five years had elapsed after the indorsement of the credit on the note.
Before the amendment was made the petition did not state a cause of action. The indorsement was not a written acknowledgment of an existing liability signed by the party to be charged. Nothing else could revive liability except payment of a part of the principal or interest by the debtor. (Civ. Code, ■§23.) The petition did not allege such a payment and the indorsement on the note did not either expressly or impliedly assert such a payment. An indorsement of a receipt of money, made after the statute has run, is regarded as a self-serving -declaration of the creditor and not as evidence against the debtor. (Easter v. Easter, 44 Kan. 151, 24 Pac. 57; Hamilton v. Coffin, 45 Kan. 556, 558, 26 Pac. 42.) The fact of payment by the debtor is not indicated by the indorsement, but must be proved by other evidence. To' permit the introduction of such ■evidence the petition must contain an allegation of the fact. If the petition had contained an allegation that the payment indorsed on the note was made by the debtor, the allegation would have been taken as true unless denied under oath. (Pears v. Wilson, 23 Kan. 343.) But without the allegation the indorsement itself did not assert payment by the debtor, nothing concerning the indorsement was taken as true, ex cept the date, and the petition disclosed upon its face that the action was barred. The amendment containing the necessary allegation was made after the bar of the statute was complete. A cause of action was then stated for the first time (Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189), and too late.
The judgment of the district court is affirmed.
|
[
86,
104,
-127,
127,
-54,
96,
42,
-78,
65,
1,
35,
115,
-23,
-61,
21,
109,
-14,
41,
113,
122,
101,
-77,
55,
73,
-14,
-77,
-7,
93,
48,
125,
-28,
-42,
76,
48,
-62,
-107,
-26,
-54,
-63,
-42,
78,
7,
27,
-60,
-15,
72,
48,
107,
5,
13,
113,
79,
-13,
47,
60,
78,
105,
41,
107,
-71,
-48,
-80,
-101,
5,
127,
20,
49,
117,
-100,
68,
104,
14,
-124,
57,
-127,
-24,
114,
-74,
-122,
84,
75,
25,
41,
98,
102,
-96,
101,
-21,
-100,
-72,
38,
-106,
31,
-90,
-110,
88,
11,
45,
-66,
-99,
60,
17,
7,
-10,
-14,
5,
29,
108,
7,
-118,
-42,
-109,
31,
118,
30,
3,
-25,
-93,
32,
112,
-49,
0,
92,
71,
59,
-101,
-114,
-78
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.